Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Transactions shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by Parent in its sole discretion: (a) The representations and warranties of the Company contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true in all respects after giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date. (b) The Company shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or complied with by it prior to or at the Closing. (c) Parent shall have received from the Company a certificate, without personal liability, to the effect set forth in Section 8.3(a) and Section 8.3(b), signed by the Chief Executive Officer and the Chief Financial Officer of the Company (or, in each case, a Person acting in a similar capacity). (d) The representations and warranties of each Supporting Shareholder contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality which representations and warranties shall be true in all respects giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date. (e) Each Supporting Shareholder shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or complied with by such Supporting Shareholder prior to or at the Closing. (f) Parent shall have received evidence, in form and substance reasonably satisfactory to it, that the Company Group Members shall have obtained the authorizations, consents, orders, waivers and approvals of third parties listed on Section 8.3(f) of the Disclosure Schedule. (g) Parent shall have received an executed counterpart of each of the Ancillary Agreements, signed by each party other than Parent and Sub. (h) Parent shall have received letters of resignation from the directors and officers of each Company Group Member, including a customary general release of claims against the applicable Company Group Member. (i) The Company shall have delivered to Parent a payoff letter duly executed by each holder of Funded Indebtedness, each in form and substance reasonably acceptable to Parent, in which the payee shall agree that upon payment of the amount specified in such payoff letter: (i) all outstanding obligations of the Company arising under or related to the applicable Funded Indebtedness shall be repaid, discharged and extinguished in full; (ii) all Encumbrances in connection therewith shall be released (including, in connection with the Comerica Loan Agreement, the termination of the SR&ED Assignment Agreement); (iii) the payee shall take all actions reasonably requested by Parent to evidence and record such discharge and release as promptly as practicable; and (iv) the payee shall return to the Company all instruments evidencing the applicable Funded Indebtedness (including all notes) and all collateral securing the applicable Funded Indebtedness (each such payoff letter, a “Debt Payoff Letter”). (j) With respect to any Transaction Expenses which will not have been paid in full prior to the Closing Date, at least two Business Days prior to the Closing Date, the Company shall submit to Parent reasonably satisfactory documentation setting forth an itemized list of all, and amounts of all, Transaction Expenses, including the identity of each payee, dollar amounts owed, wire instructions and any other information necessary to effect the final payment in full thereof (including a Form W-9 or W-8 BEN, if requested by Parent), and copies of final invoices from each such payee acknowledging the invoiced amounts as full and final payment for all services rendered to the Company (the “Transaction Expenses Payoff Instructions”). Prior to the Closing, the Company shall have delivered to Parent an invoice duly executed by each payee referred to in the Transaction Expenses Payoff Instructions in form and substance reasonably satisfactory to Parent in which the payee shall agree that, upon payment of the amounts specified in the Transaction Expenses Payoff Instructions, all obligations of the Company to such payee to date shall be repaid, discharged and extinguished in full. (k) The Company shall have delivered to Parent the Estimated Closing Statement and the Consideration Spreadsheet in accordance with Section 2.12(a) and Section 2.15. (l) The Company shall have delivered to Parent an opinion of Company’s legal counsel dated as of the Closing Date, addressed to Parent and Sub and substantially in the form of Exhibit E attached hereto. (m) No more than 5% of the Company Shareholders (determined on a on an as converted to Common Share basis) shall have asserted Dissent Rights, and all Company Shareholders (other than up to 5% of the Company Shareholders (determined on an as converted to Common Share basis)) shall have, by virtue of voting their Company Shares in favor of the Arrangement or otherwise, irrevocably waived any such rights with respect to the Arrangement. (n) At least 90% of the Company Group Employees (including any employees that resign their employment with the Company and are hired by Parent (or one of its Subsidiaries) prior to the Closing Time) shall remain employed by the applicable Company Group Member without indication that such Company Group Employees intend to terminate their employment or relationship with the applicable Company Group Member. Each of the Key Employees shall have executed and delivered to Parent a Non-Competition Agreement and Founder shall have executed and delivered to Parent the Employee Agreement, and neither Key Employee shall have terminated employment or given notice of an intention to termination employment with Parent prior to the Closing Time. (o) The Company shall have delivered to Parent the Business Plan, in form and substance approved by Parent, acting reasonably. (p) The Company shall have delivered to Parent evidence of termination of the Executive Services Agreement. (q) The Company shall have delivered to Parent evidence of the assignment by each of the Founder, Xxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxxx of the US Patent Application to the Company. (r) The Company shall have delivered to Parent evidence confirming that each of the domain names set forth in Section 3.14(a) of the Disclosure Schedule are registered in the name of a Company Group Member. (s) There shall not have occurred any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect. (t) Parent shall have received from the Company a certificate, in form and substance reasonably satisfactory to Parent, certifying, in such officer’s capacity as an officer of the Company and not in his or her personal capacity that: (i) attached thereto is a true, correct and complete copy of: (A) the Company Articles and Company Bylaws; (B) the resolution of the board of directors of the Company approving the Arrangement Agreement and the transactions contemplated thereby; (C) the Arrangement Resolution; (D) a certificate of status of the Company from its jurisdiction of organization; and (E) the Company Shareholders Agreement; (ii) the resolutions referenced in subsection (i)(B) and (i)(C) are in full force and effect as of the Closing Date; and (iii) nothing has occurred since the date of the issuance of the certificate of status referenced in subsection (i)(D) that would adversely affect the existence of the Company.
Appears in 1 contract
Conditions to Obligations of Parent and Sub. The obligations obligation of Parent and Sub to consummate the Transactions shall transactions contemplated by this Agreement to be consummated at the Closing is subject to the fulfillment, at or prior to the Closing, of each satisfaction of the following additional conditions, any of which may be waived in writing by Parent in its sole discretion:
(a) The Empire shall have obtained at its own expense (and shall have provided copies thereof to Parent of) (i) all Third Party Consents and effected all Governmental Filings listed on Section 5.2(a)(i) of the Empire Disclosure Schedule, (ii) the Regulatory Approvals and (iii) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of Empire which if not obtained or effected would reasonably be expected to have a Business Material Adverse Effect on the right of Parent to own, operate or control the Empire Shares following the Closing or on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(b) the representations and warranties of Empire shall be true and correct in all material respects, in each case as of the Company contained in date of this Agreement or any Ancillary Agreement or any scheduleand as of the Closing as though made as of the Closing, certificate or other document delivered pursuant hereto or thereto or except to the extent such representations and warranties are specifically made as of a particular date (in connection with the transactions contemplated hereby or thereby which case such representations and warranties shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true in all respects after giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date.);
(bc) The Company Empire shall have performed or complied in all material respects all obligations and with the agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or complied with by it them under this Agreement as of or prior to or at the Closing.
(c) Parent shall have received from the Company a certificate, without personal liability, to the effect set forth in Section 8.3(a) and Section 8.3(b), signed by the Chief Executive Officer and the Chief Financial Officer of the Company (or, in each case, a Person acting in a similar capacity).;
(d) The representations and warranties no Legal Proceeding shall be pending or threatened in writing wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of each Supporting Shareholder contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation or thereby (iii) affect adversely the right of Parent to own or control any of the Empire Shares, or to conduct the business of Empire as currently conducted, following the Closing, and no such judgment, order, decree, stipulation or injunction shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality which representations and warranties shall be true in all respects giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date.effect;
(e) Each Supporting Shareholder There shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required been delivered to Parent the Empire Closing Certificate executed by this Agreement or any Ancillary Agreement to be performed or complied with by such Supporting Shareholder prior to or at the Closing.an officer of Empire;
(f) Parent each of Xxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxx Xxx shall have received evidence(i) entered into an "at will" employment arrangement with Empire contingent upon the Closing which shall supercede and terminate any prior written or oral employment agreement between each of them and Empire, in and (ii) executed Parent's form of Employee Proprietary Information and substance reasonably satisfactory to itInvention Assignment Agreement, that the Company Group Members which agreement shall have obtained the authorizations, consents, orders, waivers be between Empire and approvals each of third parties listed on Section 8.3(f) of the Disclosure Schedule.them and shall be contingent upon Closing;
(g) Parent shall have received an executed counterpart of each of the Ancillary Agreements, signed by each party other than Parent and Sub.
(h) Parent shall have received letters of resignation from the directors and officers of each Company Group Member, including a customary general release of claims against the applicable Company Group Member.
(i) The Company Empire shall have delivered to Parent a payoff letter duly executed by each holder of Funded Indebtednessan update, each in form and substance reasonably acceptable to Parent, in which the payee shall agree that upon payment as of the amount specified in such payoff letter: (i) all outstanding obligations of the Company arising under or related to the applicable Funded Indebtedness shall be repaid, discharged and extinguished in full; (ii) all Encumbrances in connection therewith shall be released (including, in connection with the Comerica Loan Agreement, the termination of the SR&ED Assignment Agreement); (iii) the payee shall take all actions reasonably requested by Parent to evidence and record such discharge and release as promptly as practicable; and (iv) the payee shall return to the Company all instruments evidencing the applicable Funded Indebtedness (including all notes) and all collateral securing the applicable Funded Indebtedness (each such payoff letter, a “Debt Payoff Letter”).
(j) With respect to any Transaction Expenses which will not have been paid in full date prior to the Closing Date, at least two Business Days prior of each list contained in the Disclosure Schedule that lists or describes the material assets of Empire;
(h) this Agreement and the Merger shall have received the Requisite Stockholder Approval, and the number of Dissenting Shares shall not exceed 2% of the number of outstanding Empire Shares;
(i) Empire shall have delivered an opinion of Xxxxx Xxxxxxx LLP, counsel to Empire, in the form attached hereto as Exhibit E;
(j) Parent shall have reasonably determined that the issuance of the Merger Stock to the Empire Stockholders contemplated by this Agreement shall be exempt from registration under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder;
(k) Empire shall have delivered a certificate, dated the Closing Date and delivered on the Closing Date, the Company shall submit to Parent reasonably satisfactory documentation setting forth an itemized list of all, and amounts of all, Transaction Expenses, including the identity of each payee, dollar amounts owed, wire instructions and any other information necessary to effect the final payment in full thereof (including a Form W-9 or W-8 BEN, if requested by Parent), and copies of final invoices from each such payee acknowledging the invoiced amounts as full and final payment for all services rendered to the Company (the “Transaction Expenses Payoff Instructions”). Prior to the Closing, the Company shall have delivered to Parent an invoice duly executed by each payee referred to in the Transaction Expenses Payoff Instructions in form and substance reasonably satisfactory to Parent in Secretary of Empire, which the payee shall agree that, upon payment of the amounts specified in the Transaction Expenses Payoff Instructions, all obligations of the Company to such payee to date shall be repaid, discharged and extinguished in full.
(k) The Company shall have delivered to Parent the Estimated Closing Statement and the Consideration Spreadsheet in accordance with Section 2.12(a) and Section 2.15.
(l) The Company shall have delivered to Parent an opinion of Company’s legal counsel dated as of the Closing Date, addressed to Parent and Sub and substantially in the form of Exhibit E attached hereto.
(m) No more than 5% of the Company Shareholders (determined on a on an as converted to Common Share basis) shall have asserted Dissent Rights, and all Company Shareholders (other than up to 5% of the Company Shareholders (determined on an as converted to Common Share basis)) shall have, by virtue of voting their Company Shares in favor of the Arrangement or otherwise, irrevocably waived any such rights with respect to the Arrangement.
(n) At least 90% of the Company Group Employees (including any employees that resign their employment with the Company and are hired by Parent (or one of its Subsidiaries) prior to the Closing Time) shall remain employed by the applicable Company Group Member without indication that such Company Group Employees intend to terminate their employment or relationship with the applicable Company Group Member. Each of the Key Employees shall have executed and delivered to Parent a Non-Competition Agreement and Founder shall have executed and delivered to Parent the Employee Agreement, and neither Key Employee shall have terminated employment or given notice of an intention to termination employment with Parent prior to the Closing Time.
(o) The Company shall have delivered to Parent the Business Plan, in form and substance approved by Parent, acting reasonably.
(p) The Company shall have delivered to Parent evidence of termination of the Executive Services Agreement.
(q) The Company shall have delivered to Parent evidence of the assignment by each of the Founder, Xxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxxx of the US Patent Application to the Company.
(r) The Company shall have delivered to Parent evidence confirming that each of the domain names set forth in Section 3.14(a) of the Disclosure Schedule are registered in the name of a Company Group Member.
(s) There shall not have occurred any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect.
(t) Parent shall have received from the Company a certificate, in form and substance reasonably satisfactory to Parent, certifying, in such officer’s capacity as an officer of the Company and not in his or her personal capacity that: (i) attached thereto is attach a true, correct and complete certified copy of: (A) of the Company Articles and Company Bylaws; (B) the resolution resolutions of the board of directors of Empire authorizing and approving this Agreement and the Company approving consummation of the Arrangement Agreement Merger and the transactions contemplated thereby; (C) the Arrangement Resolution; (D) a certificate of status of the Company from its jurisdiction of organization; and (E) the Company Shareholders by this Agreement; (ii) attach a certified copy of the resolutions referenced of the stockholders of Empire approving this Agreement and the consummation of the transactions contemplated by this Agreement; (iii) identify by name and title and bear the signature of its officer authorized to execute this Agreement or any other agreement or instrument to be executed by Empire in subsection (i)(B) connection with the Closing; and (i)(Civ) are attach a certified copy of the certificate of incorporation of Empire, including all amendments, certified by the relevant Secretary of State (or comparable authority) of the state of incorporation of Empire;
(l) Parent shall have received such other certificates and instruments (including certificates of good standing of Empire in full force its jurisdiction of organization and effect the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing;
(m) the parties thereto shall have executed and delivered the Escrow Agreement;
(n) since the Balance Sheet Date, a Business Material Adverse Effect shall not have occurred;
(o) the completion by an independent accountant reasonably acceptable to Parent and Sub of an audit of the Financial Statements to Parent’s and Parent’s reasonable satisfaction;
(p) the receipt of reasonably satisfactory evidence that the aggregate Liabilities of Empire as of the Closing Date; Date do not exceed $1,500,000 and that all such Liabilities have been set forth on the Most Recent Balance Sheet;
(iiiq) nothing has occurred since the date receipt of any approvals from the Bankruptcy Court as Parent and Sub, in consultation with counsel, shall reasonably deem necessary or appropriate for the consummation of the issuance transactions contemplated by this Agreement, and including without limitation a final and non-appealable order of the certificate Bankruptcy Court to the effect that the Plan has been substantially consummated; and
(r) the execution and delivery by EOT Lending Corp. a New York corporation ("EOT Lending"), of status referenced a release in subsection (i)(D) form and substance acceptable to Parent and its counsel to the effect that would adversely affect any portion of principal, interest, fees, delinquent payments, penalties, costs or other amounts due or payable to EOT Lending under the existence Secured Debenture and not paid by Parent as part of the CompanyCompany Debt at the Effective Time, together with any other claims or obligations of Empire to EOT Lending shall be waived, released, forgiven and cancelled, and that from and after the Effective Time, the Surviving Corporation shall have no Liability of any type to EOT Lending.
Appears in 1 contract
Samples: Merger Agreement (Fonix Corp)
Conditions to Obligations of Parent and Sub. The obligations obligation of Parent and Sub to consummate the Transactions shall be Closing is subject to the fulfillment, at satisfaction or prior to the Closing, of each waiver of the following further conditions, any of which may be waived in writing by Parent in its sole discretion:
(ai) The representations and warranties of the Company contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true in all respects after giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date.
(b) The Company Stockholder shall have performed in all material respects all of its or his obligations hereunder required to be performed on or prior to the Closing Date, (ii) the representations and agreements warranties of the Company and complied Stockholder contained in this Agreement at the time of its execution and delivery and in any certificate or other writing delivered by the Company or Hill pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true at and as of the Closing Date, as if made at and as of such date with all covenants only such exceptions as would not in the aggregate reasonably be expected to have a Material Adverse Effect and conditions required (iii) Parent shall have received a certificate signed by (A) the President of the Company and (B) Stockholder to the foregoing effect.
(b) No court, arbitrator or governmental body, agency or official shall have issued any order, and there shall not be any statute, rule or regulation, restraining the effective operation by Parent of the business of the Company after the Closing Date, and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Ancillary Agreement to Person before any court, arbitrator or governmental body, agency or official and be performed or complied with by it prior to or at the Closingpending.
(c) Parent shall have received from an opinion of Company Counsel, dated the Company a certificate, without personal liabilityClosing Date, to the effect set forth in Section 8.3(a) and Section 8.3(b)specified on EXHIBIT G. In rendering such opinion, signed such counsel may rely upon certificates of public officers, as to matters governed by the Chief Executive Officer and laws of jurisdictions other than the Chief Financial Officer Commonwealth of Virginia or the federal laws of the Company (orUnited States of America, in each caseupon opinions of counsel reasonably satisfactory to Parent, a Person acting in a similar capacity)copies of which shall be contemporaneously delivered to Parent, and as to matters of fact, upon certificates of Stockholder and officers of the Company.
(d) The representations Stockholder and warranties of the Company shall have executed and delivered each Supporting Shareholder contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality which representations and warranties shall be true in all respects giving effect to such qualifications) both when made and as of the Closing DateAncillary Agreements to be entered into by them or it at the Closing, or in each case substantially in the case of representations and warranties that are made form attached as of a specified date, such representations and warranties shall be true and correct, an exhibit to the extent set forth above, as of such specified datethis Agreement.
(e) Each Supporting Shareholder shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or complied with by such Supporting Shareholder prior to or at the Closing.
(f) Parent shall have received evidenceall other closing documents specified in Section 2.02 of this Agreement and all other closing documents that it may reasonably request, all in form and substance reasonably satisfactory to it, Parent.
(f) Price Waterhouse LLP shall have delivered to Parent its written opinion that it has no basis for believing that the Company Group Members transactions contemplated by this Agreement shall not be accounted for as a "pooling of interests" in accordance with generally accepted accounting principles, and Parent shall have obtained no reason to believe that such accounting treatment will not be accepted by the authorizations, consents, orders, waivers Securities and approvals of third parties listed on Section 8.3(f) of the Disclosure ScheduleExchange Commission.
(g) The Company shall deliver to Parent shall have received an a properly executed counterpart statement in a form reasonably requested by Parent for purposes of each of the Ancillary Agreements, signed by each party other than Parent and Subsatisfying Parent's obligations under Treasury Regulation sec.1.1445-2(c)(3).
(h) Parent shall have received letters evidence satisfactory to it of resignation from Hill's payment of all costs and expenses incurred by the directors Company or Stockholder in connection with this Agreement, other than up to an aggregate of $50,000 of reasonable legal and officers accounting fees of each the Company Group Member, including a customary general release of claims against and Stockholder (collectively referred to as the applicable "Company Group MemberFees").
(i) The Company Parent shall have delivered to received a written waiver of notice of issuance from Smitx Xxxxxx Xxx. under the provisions of that certain Underwriting Agreement dated as of December 6, 1996 between Parent a payoff letter duly executed by each holder of Funded Indebtedness, each in form and substance reasonably acceptable to Parent, in which the payee shall agree that upon payment of the amount specified in such payoff letter: (i) all outstanding obligations of the Company arising under or related to the applicable Funded Indebtedness shall be repaid, discharged and extinguished in full; (ii) all Encumbrances in connection therewith shall be released (including, in connection with the Comerica Loan Agreement, the termination of the SR&ED Assignment Agreement); (iii) the payee shall take all actions reasonably requested by Parent to evidence and record such discharge and release as promptly as practicable; and (iv) the payee shall return to the Company all instruments evidencing the applicable Funded Indebtedness (including all notes) and all collateral securing the applicable Funded Indebtedness (each such payoff letter, a “Debt Payoff Letter”)other parties named therein.
(j) With respect to any Transaction Expenses which will not Parent shall have received from the Company written evidence that (i) the execution, delivery and performance of the Agreement have been paid in full prior to duly and validly approved and authorized by the Closing Date, at least two Business Days prior to Company's board of directors and by the Closing Date, the Company shall submit to Parent reasonably satisfactory documentation setting forth an itemized list of all, and amounts of all, Transaction Expenses, including the identity of each payee, dollar amounts owed, wire instructions and any other information necessary to effect the final payment in full thereof (including a Form W-9 or W-8 BEN, if requested by Parent), and copies of final invoices from each such payee acknowledging the invoiced amounts as full and final payment for all services rendered to the Company (the “Transaction Expenses Payoff Instructions”). Prior to the Closing, the Company shall have delivered to Parent an invoice duly executed by each payee referred to in the Transaction Expenses Payoff Instructions in form and substance reasonably satisfactory to Parent in which the payee shall agree that, upon payment of the amounts specified in the Transaction Expenses Payoff Instructions, all obligations stockholders of the Company and (ii) no stockholders of the Company have, or might be able to such payee to date shall be repaidperfect, discharged and extinguished dissenters' or appraisal rights in fullconnection with the Merger.
(k) The Each of the employees of the Company listed on SCHEDULE 10.02 shall have delivered to Parent the Estimated Closing Statement accepted employment with State and the Consideration Spreadsheet in accordance with Section 2.12(a) and Section 2.15Federal Associates, Inc., a wholly-owned subsidiary of Parent.
(l) The Company shall have delivered to Parent an opinion of Company’s legal counsel dated as received all of the Closing Date, addressed to Parent consents and Sub and substantially in the form of Exhibit E attached heretowaivers set forth on SCHEDULE 3.03.
(m) No more than 5% Karex Xxxxxxxx (xx her nominee) shall have completed an audit, to Parent's satisfaction, of the balance sheet of the Company Shareholders (determined on a on an as converted to Common Share basis) shall have asserted Dissent Rightsof December 31, and all Company Shareholders (other than up to 5% of the Company Shareholders (determined on an as converted to Common Share basis)) shall have, by virtue of voting their Company Shares in favor of the Arrangement or otherwise, irrevocably waived any such rights with respect to the Arrangement.
(n) At least 90% of the Company Group Employees (including any employees that resign their employment with the Company and are hired by Parent (or one of its Subsidiaries) prior to the Closing Time) shall remain employed by the applicable Company Group Member without indication that such Company Group Employees intend to terminate their employment or relationship with the applicable Company Group Member. Each of the Key Employees shall have executed and delivered to Parent a Non-Competition Agreement and Founder shall have executed and delivered to Parent the Employee Agreement, and neither Key Employee shall have terminated employment or given notice of an intention to termination employment with Parent prior to the Closing Time.
(o) The Company shall have delivered to Parent the Business Plan, in form and substance approved by Parent, acting reasonably.
(p) The Company shall have delivered to Parent evidence of termination of the Executive Services Agreement.
(q) The Company shall have delivered to Parent evidence of the assignment by each of the Founder, Xxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxxx of the US Patent Application to the Company.
(r) The Company shall have delivered to Parent evidence confirming that each of the domain names set forth in Section 3.14(a) of the Disclosure Schedule are registered in the name of a Company Group Member.
(s) There shall not have occurred any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect.
(t) Parent shall have received from the Company a certificate, in form and substance reasonably satisfactory to Parent, certifying, in such officer’s capacity as an officer of the Company and not in his or her personal capacity that: (i) attached thereto is a true, correct and complete copy of: (A) the Company Articles and Company Bylaws; (B) the resolution of the board of directors of the Company approving the Arrangement Agreement 1996 and the transactions contemplated thereby; (C) accompanying statements for the Arrangement Resolution; (D) a certificate of status of the Company from its jurisdiction of organization; and (E) the Company Shareholders Agreement; (ii) the resolutions referenced in subsection (i)(B) and (i)(C) are in full force and effect as of the Closing Date; and (iii) nothing has occurred since the date of the issuance of the certificate of status referenced in subsection (i)(D) that would adversely affect the existence of the Companyyear then ended.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Parexel International Corp)
Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Transactions Merger and the other transactions contemplated hereby shall be subject to the fulfillment, at or prior to the Closing, of each fulfillment of the following conditions, any conditions unless waived by each of which may be waived in writing by Parent in its sole discretionand Sub:
(a) The representations and warranties of the Company contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations on the date hereof and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true in all respects after giving effect to such qualifications) both when made on and as of the Closing Date, or in Date as though made on and as of the case of Closing Date (except for representations and warranties that are made as of a specified date, which need be true and correct only as of the specified date), other than such breaches of representations and warranties shall which would not have or which would not be true and correctreasonably expect to have, to in the extent set forth aboveaggregate, as of such specified datea material adverse effect on the Company.
(b) The Company shall have performed in all material respects each obligation and agreement and shall have complied in all obligations and agreements and complied material respects with all covenants and conditions required by this Agreement or any Ancillary Agreement each covenant to be performed or and complied with by it hereunder at or prior to or at the ClosingEffective Time.
(c) Parent shall have received from the Company a certificate, without personal liability, to the effect set forth in Section 8.3(a) and Section 8.3(b), signed by the Chief Executive Officer and the Chief Financial Officer of the Company (or, in each case, a Person acting in a similar capacity).
(d) The representations and warranties of each Supporting Shareholder contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality which representations and warranties shall be true in all respects giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date.
(e) Each Supporting Shareholder shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or complied with by such Supporting Shareholder prior to or at the Closing.
(f) Parent shall have received evidence, in form and substance reasonably satisfactory to it, that the Company Group Members shall have obtained the authorizations, consents, orders, waivers and approvals of third parties listed on Section 8.3(f) of the Disclosure Schedule.
(g) Parent shall have received an executed counterpart of each of the Ancillary Agreements, signed by each party other than Parent and Sub.
(h) Parent shall have received letters of resignation from the directors and officers of each Company Group Member, including a customary general release of claims against the applicable Company Group Member.
(i) The Company shall have delivered to Parent a payoff letter duly executed by each holder of Funded Indebtednesscertificate, each in form and substance reasonably acceptable to Parent, in which the payee shall agree that upon payment of the amount specified in such payoff letter: (i) all outstanding obligations of the Company arising under or related to the applicable Funded Indebtedness shall be repaid, discharged and extinguished in full; (ii) all Encumbrances in connection therewith shall be released (including, in connection with the Comerica Loan Agreement, the termination of the SR&ED Assignment Agreement); (iii) the payee shall take all actions reasonably requested by Parent to evidence and record such discharge and release as promptly as practicable; and (iv) the payee shall return to the Company all instruments evidencing the applicable Funded Indebtedness (including all notes) and all collateral securing the applicable Funded Indebtedness (each such payoff letter, a “Debt Payoff Letter”).
(j) With respect to any Transaction Expenses which will not have been paid in full prior to the Closing Date, at least two Business Days prior to the Closing Date, the Company shall submit to Parent reasonably satisfactory documentation setting forth an itemized list of all, and amounts of all, Transaction Expenses, including the identity of each payee, dollar amounts owed, wire instructions and any other information necessary to effect the final payment in full thereof (including a Form W-9 or W-8 BEN, if requested by Parent), and copies of final invoices from each such payee acknowledging the invoiced amounts as full and final payment for all services rendered to the Company (the “Transaction Expenses Payoff Instructions”). Prior to the Closing, the Company shall have delivered to Parent an invoice duly executed by each payee referred to in the Transaction Expenses Payoff Instructions in form and substance reasonably satisfactory to Parent in which the payee shall agree that, upon payment of the amounts specified in the Transaction Expenses Payoff Instructions, all obligations of the Company to such payee to date shall be repaid, discharged and extinguished in full.
(k) The Company shall have delivered to Parent the Estimated Closing Statement and the Consideration Spreadsheet in accordance with Section 2.12(a) and Section 2.15.
(l) The Company shall have delivered to Parent an opinion of Company’s legal counsel dated as of the Closing DateDate and signed by its Chairman, addressed Chief Executive Officer and President or a Senior Vice President certifying as to Parent the satisfaction of the matters described in (a) and Sub and substantially in the form of Exhibit E attached hereto(b) above.
(md) No more than 5% Each person who may be at the Effective Time or was on the date of this Agreement an "affiliate" of the Company Shareholders (determined on a on an as converted to Common Share basis) shall have asserted Dissent Rightswithin the meaning of Rule 145 under the Securities Act, and all Company Shareholders (other than up to 5% of the Company Shareholders (determined on an as converted to Common Share basis)) shall have, by virtue of voting their Company Shares in favor of the Arrangement or otherwise, irrevocably waived any such rights with respect to the Arrangement.
(n) At least 90% of the Company Group Employees (including any employees that resign their employment with the Company and are hired by Parent (or one of its Subsidiaries) prior to the Closing Time) shall remain employed by the applicable Company Group Member without indication that such Company Group Employees intend to terminate their employment or relationship with the applicable Company Group Member. Each of the Key Employees shall have executed and delivered to Parent a Non-Competition Agreement and Founder shall have executed and delivered to Parent written undertaking in the Employee Agreement, and neither Key Employee shall have terminated employment or given notice of an intention to termination employment with Parent prior to the Closing Timeform attached hereto as Exhibit 5.1(k).
(o) The Company shall have delivered to Parent the Business Plan, in form and substance approved by Parent, acting reasonably.
(p) The Company shall have delivered to Parent evidence of termination of the Executive Services Agreement.
(q) The Company shall have delivered to Parent evidence of the assignment by each of the Founder, Xxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxxx of the US Patent Application to the Company.
(r) The Company shall have delivered to Parent evidence confirming that each of the domain names set forth in Section 3.14(a) of the Disclosure Schedule are registered in the name of a Company Group Member.
(s) There shall not have occurred any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect.
(te) Parent shall have received from the Company a certificateletter, in form and substance reasonably satisfactory to Parent, certifyingfrom Deloitte & Touche LLP, in such officer’s capacity as an officer of the Company and not in his or her personal capacity that: (i) attached thereto is a true, correct and complete copy of: (A) the Company Articles and Company Bylaws; (B) the resolution of the board of directors of the Company approving the Arrangement Agreement and the transactions contemplated thereby; (C) the Arrangement Resolution; (D) a certificate of status of the Company from its jurisdiction of organization; and (E) the Company Shareholders Agreement; (ii) the resolutions referenced in subsection (i)(B) and (i)(C) are in full force and effect as of the Closing Date; and (iii) nothing has occurred since dated the date of the issuance Proxy Statement and confirmed in writing at the Effective Time, stating that the Merger will qualify as a pooling of interests transaction under Opinion 16 of the certificate Accounting Principles Board.
(f) Parent shall have received from the Company the "comfort" letters of status referenced KPMG Peat Marwick LLP described in subsection Section 5.3(c).
(i)(Dg) that would adversely affect the existence Each of the Company.Glinx X.
Appears in 1 contract
Samples: Merger Agreement (Belmont Homes Inc)
Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Transactions Merger and the other transactions contemplated hereby shall be subject to the fulfillment, at or prior to the Closing, of each fulfillment of the following conditions, any conditions unless waived by each of which may be waived in writing by Parent in its sole discretionand Sub:
(a) The representations and warranties of the Company contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations on the date hereof and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true in all respects after giving effect to such qualifications) both when made on and as of the Closing Date, or in Date as though made on and as of the case of Closing Date (except for representations and warranties that are made as of a specified date, which need be true and correct only as of the specified date), other than such breaches of representations and warranties shall which would not have or which would not be true and correctreasonably expect to have, to in the extent set forth aboveaggregate, as of such specified datea material adverse effect on the Company.
(b) The Company shall have performed in all material respects each obligation and agreement and shall have complied in all obligations and agreements and complied material respects with all covenants and conditions required by this Agreement or any Ancillary Agreement each covenant to be performed or and complied with by it hereunder at or prior to or at the ClosingEffective Time.
(c) Parent shall have received from the Company a certificate, without personal liability, to the effect set forth in Section 8.3(a) and Section 8.3(b), signed by the Chief Executive Officer and the Chief Financial Officer of the Company (or, in each case, a Person acting in a similar capacity).
(d) The representations and warranties of each Supporting Shareholder contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality which representations and warranties shall be true in all respects giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date.
(e) Each Supporting Shareholder shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or complied with by such Supporting Shareholder prior to or at the Closing.
(f) Parent shall have received evidence, in form and substance reasonably satisfactory to it, that the Company Group Members shall have obtained the authorizations, consents, orders, waivers and approvals of third parties listed on Section 8.3(f) of the Disclosure Schedule.
(g) Parent shall have received an executed counterpart of each of the Ancillary Agreements, signed by each party other than Parent and Sub.
(h) Parent shall have received letters of resignation from the directors and officers of each Company Group Member, including a customary general release of claims against the applicable Company Group Member.
(i) The Company shall have delivered to Parent a payoff letter duly executed by each holder of Funded Indebtednesscertificate, each in form and substance reasonably acceptable to Parent, in which the payee shall agree that upon payment of the amount specified in such payoff letter: (i) all outstanding obligations of the Company arising under or related to the applicable Funded Indebtedness shall be repaid, discharged and extinguished in full; (ii) all Encumbrances in connection therewith shall be released (including, in connection with the Comerica Loan Agreement, the termination of the SR&ED Assignment Agreement); (iii) the payee shall take all actions reasonably requested by Parent to evidence and record such discharge and release as promptly as practicable; and (iv) the payee shall return to the Company all instruments evidencing the applicable Funded Indebtedness (including all notes) and all collateral securing the applicable Funded Indebtedness (each such payoff letter, a “Debt Payoff Letter”).
(j) With respect to any Transaction Expenses which will not have been paid in full prior to the Closing Date, at least two Business Days prior to the Closing Date, the Company shall submit to Parent reasonably satisfactory documentation setting forth an itemized list of all, and amounts of all, Transaction Expenses, including the identity of each payee, dollar amounts owed, wire instructions and any other information necessary to effect the final payment in full thereof (including a Form W-9 or W-8 BEN, if requested by Parent), and copies of final invoices from each such payee acknowledging the invoiced amounts as full and final payment for all services rendered to the Company (the “Transaction Expenses Payoff Instructions”). Prior to the Closing, the Company shall have delivered to Parent an invoice duly executed by each payee referred to in the Transaction Expenses Payoff Instructions in form and substance reasonably satisfactory to Parent in which the payee shall agree that, upon payment of the amounts specified in the Transaction Expenses Payoff Instructions, all obligations of the Company to such payee to date shall be repaid, discharged and extinguished in full.
(k) The Company shall have delivered to Parent the Estimated Closing Statement and the Consideration Spreadsheet in accordance with Section 2.12(a) and Section 2.15.
(l) The Company shall have delivered to Parent an opinion of Company’s legal counsel dated as of the Closing DateDate and signed by its Chairman, addressed Chief Executive Officer and President or a Senior Vice President certifying as to Parent the satisfaction of the matters described in (a) and Sub and substantially in the form of Exhibit E attached hereto(b) above.
(md) No more than 5% Each person who may be at the Effective Time or was on the date of this Agreement an "affiliate" of the Company Shareholders (determined on a on an as converted to Common Share basis) shall have asserted Dissent Rightswithin the meaning of Rule 145 under the Securities Act, and all Company Shareholders (other than up to 5% of the Company Shareholders (determined on an as converted to Common Share basis)) shall have, by virtue of voting their Company Shares in favor of the Arrangement or otherwise, irrevocably waived any such rights with respect to the Arrangement.
(n) At least 90% of the Company Group Employees (including any employees that resign their employment with the Company and are hired by Parent (or one of its Subsidiaries) prior to the Closing Time) shall remain employed by the applicable Company Group Member without indication that such Company Group Employees intend to terminate their employment or relationship with the applicable Company Group Member. Each of the Key Employees shall have executed and delivered to Parent a Non-Competition Agreement and Founder shall have executed and delivered to Parent written undertaking in the Employee Agreement, and neither Key Employee shall have terminated employment or given notice of an intention to termination employment with Parent prior to the Closing Timeform attached hereto as Exhibit 5.1(k).
(o) The Company shall have delivered to Parent the Business Plan, in form and substance approved by Parent, acting reasonably.
(p) The Company shall have delivered to Parent evidence of termination of the Executive Services Agreement.
(q) The Company shall have delivered to Parent evidence of the assignment by each of the Founder, Xxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxxx of the US Patent Application to the Company.
(r) The Company shall have delivered to Parent evidence confirming that each of the domain names set forth in Section 3.14(a) of the Disclosure Schedule are registered in the name of a Company Group Member.
(s) There shall not have occurred any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect.
(te) Parent shall have received from the Company a certificateletter, in form and substance reasonably satisfactory to Parent, certifyingfrom Deloitte & Touche LLP, in such officer’s capacity as an officer of the Company and not in his or her personal capacity that: (i) attached thereto is a true, correct and complete copy of: (A) the Company Articles and Company Bylaws; (B) the resolution of the board of directors of the Company approving the Arrangement Agreement and the transactions contemplated thereby; (C) the Arrangement Resolution; (D) a certificate of status of the Company from its jurisdiction of organization; and (E) the Company Shareholders Agreement; (ii) the resolutions referenced in subsection (i)(B) and (i)(C) are in full force and effect as of the Closing Date; and (iii) nothing has occurred since dated the date of the issuance Proxy Statement and confirmed in writing at the Effective Time, stating that the Merger will qualify as a pooling of interests transaction under Opinion 16 of the certificate Accounting Principles Board.
(f) Parent shall have received from the Company the "comfort" letters of status referenced KPMG Peat Marwick LLP described in subsection Section 5.3(c).
(i)(Dg) that would adversely affect the existence Each of the Company.Xxxxx X.
Appears in 1 contract
Conditions to Obligations of Parent and Sub. The obligations obligation of ------------------------------------------- Parent and Sub to consummate the Transactions shall be transactions contemplated hereby is subject to the fulfillment, at satisfaction or prior to the Closing, of each waiver of the following further conditions, any of which may be waived in writing by Parent in its sole discretion:
(a) The representations and warranties of the Company contained in this Agreement or at the time of its execution and delivery and in any Ancillary Agreement or any schedule, certificate or other document writing delivered by Company pursuant hereto hereto, disregarding all qualifications and exceptions contained therein relating to materiality or thereto Material Adverse Effect, shall be true and correct at and as of the Closing Date (or at and as of the date specified with respect to any representation and warranty qualified by a specific date), as if made at and as of such date with only such exceptions as would not in connection with the aggregate reasonably be expected to have a Material Adverse Effect.
(b) No court, arbitrator or governmental body, agency or official shall have issued or threatened to issue any order, and there shall not be any statute, rule or regulation, restraining the effective operation by Parent of the business of the Company after the Closing Date, and no proceeding challenging this Agreement or the transactions contemplated hereby or thereby seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted or threatened by any Person before any court, arbitrator or governmental body, agency or official and be true pending.
(c) The Company and correct each Principal Stockholder shall have performed and complied in all material respects (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true in all respects after giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date.
(b) The Company shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or and complied with by it the Company or such Principal Stockholder prior to or at the Closing.
(cd) No material adverse change in the condition (financial or otherwise), operations, assets, liabilities or business of the Company shall have occurred since December 31, 2000, whether or not such change shall have been caused by the deliberate act or omission of the Company or any Stockholder.
(e) Parent shall have received from the Company a certificateall documents, without personal liabilityagreements and items, to the effect set forth in Section 8.3(aduly executed (where applicable) and Section 8.3(b), signed by the Chief Executive Officer and the Chief Financial Officer of the Company (or, in each case, a Person acting in a similar capacity).
(d) The representations and warranties of each Supporting Shareholder contained in this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality which representations and warranties shall be true in all respects giving effect to such qualifications) both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct, to the extent set forth above, as of such specified date.
(e) Each Supporting Shareholder shall have performed in all material respects all obligations and agreements and complied with all covenants and conditions required by this Agreement or any Ancillary Agreement to be performed or complied with by such Supporting Shareholder prior to or at the Closing.
(f) Parent shall have received evidence, in form and substance reasonably satisfactory to it, that the Company Group Members shall have obtained the authorizations, consents, orders, waivers and approvals of third parties listed on Section 8.3(f) of the Disclosure Schedule.
(g) Parent shall have received an executed counterpart of each of the Ancillary Agreements, signed by each party other than Parent and Sub.
(h) Parent shall have received letters of resignation from the directors and officers of each Company Group Member, including a customary general release of claims against the applicable Company Group Member.
(i) The Company shall have delivered to Parent a payoff letter duly executed by each holder of Funded Indebtedness, each in form and substance reasonably acceptable to Parent, in which the payee shall agree that upon payment of the amount specified in such payoff letter: (i) all outstanding obligations of the Company arising under or related to the applicable Funded Indebtedness shall be repaid, discharged and extinguished in full; (ii) all Encumbrances in connection therewith shall be released (including, in connection with the Comerica Loan Agreement, the termination of the SR&ED Assignment Agreement); (iii) the payee shall take all actions reasonably requested by Parent to evidence and record such discharge and release as promptly as practicable; and (iv) the payee shall return to the Company all instruments evidencing the applicable Funded Indebtedness (including all notes) and all collateral securing the applicable Funded Indebtedness (each such payoff letter, a “Debt Payoff Letter”).
(j) With respect to any Transaction Expenses which will not have been paid in full prior to the Closing Date, at least two Business Days prior to the Closing Date, the Company shall submit to Parent reasonably satisfactory documentation setting forth an itemized list of all, and amounts of all, Transaction Expenses, including the identity of each payee, dollar amounts owed, wire instructions and any other information necessary to effect the final payment in full thereof (including a Form W-9 or W-8 BEN, if requested by Parent), and copies of final invoices from each such payee acknowledging the invoiced amounts as full and final payment for all services rendered to the Company (the “Transaction Expenses Payoff Instructions”). Prior to the Closing, the Company shall have delivered to Parent an invoice duly executed by each payee referred to in the Transaction Expenses Payoff Instructions in form and substance reasonably satisfactory to Parent in which the payee shall agree that, upon payment of the amounts specified in the Transaction Expenses Payoff Instructions, all obligations of the Company to such payee to date shall be repaid, discharged and extinguished in full.
(k) The Company shall have delivered to Parent the Estimated Closing Statement and the Consideration Spreadsheet in accordance with Section 2.12(a) and Section 2.15.
(l) The Company shall have delivered to Parent an opinion of Company’s legal counsel dated as of the Closing Date, addressed to Parent and Sub and substantially in the form of Exhibit E attached hereto.
(m) No more than 5% of the Company Shareholders (determined on a on an as converted to Common Share basis) shall have asserted Dissent Rights, and all Company Shareholders (other than up to 5% of the Company Shareholders (determined on an as converted to Common Share basis)) shall have, by virtue of voting their Company Shares in favor of the Arrangement or otherwise, irrevocably waived any such rights with respect to the Arrangement.
(n) At least 90% of the Company Group Employees (including any employees that resign their employment with the Company and are hired by Parent (or one of its Subsidiaries) prior to the Closing Time) shall remain employed by the applicable Company Group Member without indication that such Company Group Employees intend to terminate their employment or relationship with the applicable Company Group Member. Each of the Key Employees shall have executed and delivered to Parent a Non-Competition Agreement and Founder shall have executed and delivered to Parent the Employee Agreement, and neither Key Employee shall have terminated employment or given notice of an intention to termination employment with Parent prior to the Closing Time.
(o) The Company shall have delivered to Parent the Business Plan, in form and substance approved by Parent, acting reasonably.
(p) The Company shall have delivered to Parent evidence of termination of the Executive Services Agreement.
(q) The Company shall have delivered to Parent evidence of the assignment by each of the Founder, Xxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxxx of the US Patent Application to the Company.
(r) The Company shall have delivered to Parent evidence confirming that each of the domain names set forth in Section 3.14(a) of the Disclosure Schedule are registered in the name of a Company Group Member.
(s) There shall not have occurred any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect.
(t) Parent shall have received from the Company a certificate, in form and substance reasonably satisfactory to Parent, certifying, referred to in such officer’s capacity as an officer of the Company and not in his or her personal capacity that: (i) attached thereto is a true, correct and complete copy of: (A) the Company Articles and Company Bylaws; (B) the resolution of the board of directors of the Company approving the Arrangement Agreement and the transactions contemplated thereby; (C) the Arrangement Resolution; (D) a certificate of status of the Company from its jurisdiction of organization; and (E) the Company Shareholders Agreement; (ii) the resolutions referenced in subsection (i)(B) and (i)(C) are in full force and effect as of the Closing Date; and (iii) nothing has occurred since the date of the issuance of the certificate of status referenced in subsection (i)(D) that would adversely affect the existence of the CompanySection 7.01.
Appears in 1 contract
Samples: Merger Agreement (DTVN Holdings Inc)
