Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers and the other transactions contemplated hereby shall be subject to the fulfillment of the following conditions unless waived by Parent: (a) The representations and warranties of the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) shall be true and correct in all respects on and as of the Closing Date with the same effect as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company. (b) The Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to the Effective Time. (c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied. (d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company. (e) Parent shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.
Appears in 3 contracts
Samples: Merger Agreement (Intersil Corp/De), Merger Agreement (Intersil Corp/De), Merger Agreement (Xicor Inc)
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers and the other transactions contemplated hereby shall be are further subject to the fulfillment satisfaction (or waiver) at or prior to the Closing of the following conditions unless conditions, any and all of which may be waived by ParentParent in writing, in whole or in part, to the extent permitted by Applicable Law:
(a) The (i) each of the representations and warranties of Swan Sponsor, ManagementCo and the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) IV, other than the Swan Sponsor Fundamental Representations, shall be true and correct in all respects on (provided, however, that for purposes of determining the accuracy of such representations and warranties, other than the representations and warranties set forth in the penultimate sentence of Section 4.4(b), all qualifications as to Material Adverse Effect, materiality or similar words contained in such representations and warranties shall be disregarded) as of the Closing Date with the same effect as though made on and as of the Closing Date (except for such that, in each case, representations and warranties made that speak as of a specified date, the accuracy of which will be determined as of the specified date shall have been true and correct only on such date), except for changes permitted failures to be so true and correct that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (provided, for purposes of this Section 9.3(a)(i), a material adverse effect on the financial condition, business, assets or results of operations of the Company Entities, taken as a whole, shall be deemed to occur if it would be reasonably expected that the Damages suffered by Section 5.3(cParent or any Company Entity as a result thereof (after taking into consideration the reasonably likely results of mitigation efforts and insurance coverage) would exceed sixty million dollars ($60,000,000)), and except where the failure of (ii) the representations and warranties of Swan Sponsor, ManagementCo and the Company set forth in the aggregate to Swan Sponsor Fundamental Representations shall be true and correct in all material respects would not have a (provided, however, that for purposes of determining the accuracy of such representations and warranties, all qualifications as to materiality, Material Adverse Effect or similar words contained in such representations and warranties shall be disregarded) as of the Closing Date as though made on and as of the Company.Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct only on such date);
(b) The each of Swan Sponsor, ManagementCo and the Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants under this Agreement required to be performed and complied with by it hereunder such Person at or prior to the Effective Time.Closing Date pursuant to the terms hereof;
(c) The Company Swan Sponsor shall have furnished delivered to Parent with a certificate as to the satisfaction of the conditions contained in Sections 9.3(a) and 9.3(b), dated as of the Closing Date signed on its behalf and executed by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.an officer of Swan Sponsor;
(d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company., Swan Sponsor or its Affiliates shall have delivered to Parent each of those items set forth in Section 3.5(a) and Section 3.6;
(e) Parent either (i) the Company shall have received an opinion from Dechert LLP, dated obtained and provided to Parent the Closing Date, based upon certain factual representations of Parent and Rectification Order or (ii) the Company reasonably requested by such counsel, issue identified in the supporting Affidavit in the Rectification Order shall have been resolved to the effect that provided the Tax Free Valuation Test is satisfiedsatisfaction of Parent, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(aacting reasonably;
(f) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition no Credit Event shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.have occurred and no Bankruptcy Proceeding shall have commenced;
Appears in 2 contracts
Samples: Merger Agreement (Niska Gas Storage Partners LLC), Merger Agreement
Conditions to Obligations of Parent. The obligations of Parent to consummate cause Merger Sub to effect the Mergers and the other transactions contemplated hereby shall be Merger are also subject to the fulfillment satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions unless waived by Parentconditions:
(a) The Subject to the provisions of Section 6.9 herein, the representations and warranties of the Company Seasons set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) Agreement shall be true and correct in all respects on as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date with the same effect as though made on and as of the Closing Date (except Date; provided, however, that for purposes of determining the satisfaction of this condition, no effect shall be given to any exception in such representations and warranties made as (other than the representation and warranty set forth in Section 3.8(i)) relating to materiality or a Material Adverse Effect, and provided, further, that, for purposes of a specified datethis condition, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the such representations and warranties (other than those set forth in the aggregate Section 3.2(a), which shall be true and correct in all material respects, and Section 3.8(i)) shall be deemed to be true and correct in all respects unless the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, results or would not have reasonably be expected to result in a Material Adverse Effect on Seasons. Parent shall have received a certificate signed on behalf of Seasons by the CompanyChief Executive Officer and Chief Financial Officer of Seasons to the foregoing effect.
(b) The Company Seasons shall have performed in all material respects its all obligations and agreements and shall have complied in all material respects with its covenants required to be performed and complied with by it hereunder under this Agreement at or prior to the Effective TimeClosing Date, and Parent shall have received a certificate signed on behalf of Seasons by the Chief Executive Officer and the Chief Financial Officer of Seasons to such effect.
(c) The Company There shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President not be any action taken, or any Vice President statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of transactions contemplated by this Agreement, there shall not by any Governmental Entity, in connection with the grant of a Requisite Regulatory Approval or otherwise, which imposes any restriction or condition which would be reasonably likely to have been and be continuing or result in a Material Adverse Effect on the CompanyParent.
(ed) Parent Seasons shall have received an opinion from Dechert LLPincreased its loan loss reserve by $1.5 million for the quarter ended September 30, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent2006.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Seasons Bancshares Inc), Agreement and Plan of Merger (Cadence Financial Corp)
Conditions to Obligations of Parent. The obligations of Parent under this Agreement to consummate the Mergers and the other transactions contemplated hereby shall be Share Exchange are also subject to the fulfillment satisfaction or waiver, at or prior to the Effective Time, of the following conditions unless waived by Parentadditional conditions:
(a) The the representations and warranties of the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) herein shall be true and correct in all respects on (in the case of any representation or warranty containing any materiality qualification) or in all material respects (in the case of any representation or warranty without any materiality qualification) as of the date of this Agreement and as of the Closing Date with the same effect as though all such representations and warranties had been made on and as of the Closing Date Closing, except (except i) for any such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to shall be true and correct in all respects would not (in the case of any representation or warranty containing any materiality qualification) or in all material respects (in the case of any representation or warranty without any materiality qualification) as of such date, or (ii) as expressly contemplated by this Agreement, and Parent shall have a Material Adverse Effect on received from the Company.'s Chief Executive Officer and Chief Financial Officer an officer's certificate to this effect;
(b) The Company shall have performed in each and all material respects its obligations of the covenants and agreements and shall have complied in all material respects with its covenants of the Company to be performed and complied with by it hereunder at or pursuant to this Agreement prior to the Effective Time.Closing shall have been duly performed and complied with in all material respects, and Parent shall have received from the Company's Chief Executive Officer and Chief Financial Officer an officer's certificate to this effect;
(c) The Company effective demands for payment under Article 13 of the North Carolina Corporation Law shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) not have been satisfied.received by the Company with respect to more than fourteen percent (14%) of the outstanding Public Shares;
(d) Since the date of this Agreement, there Charter Amendment shall not have been filed with the Secretary of State of the State of North Carolina and be continuing a Material Adverse Effect on shall have become effective and the Company.Stock Dividend shall have been effected, all in accordance with the North Carolina Corporation Law;
(e) the Parent Repurchase Program shall have been approved by the requisite vote of the Parent shareholders in accordance with the Articles of Association of Parent and Belgian law;
(f) Parent shall have received an opinion from Dechert LLPAkin, dated Gump, Strauss, Hauex & Xeld, X.L.P. and Deloitte & Touche, LLP written opinions reasonably satisfactory to Parent regarding the Closing Date, based upon certain factual representations tax treatment of Parent the Share Exchange and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Stock Dividend under Section 368(a) 897 of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition ; and
(g) Parent shall nonetheless be deemed have received the letter referred to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parentin Section 5.16(a) above.
Appears in 2 contracts
Samples: Share Exchange Agreement (Delhaize America Inc), Share Exchange Agreement (Etablissements Delhaize Freres Et Cie Lelion Sa)
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate effect the Mergers and the other transactions contemplated hereby shall be Transaction is also subject to the fulfillment satisfaction, or waiver by Parent, at or prior to the Exchange Effective Time, of the following conditions unless waived by Parentconditions:
(a) (i) (A) The representations and warranties of the Company set forth contained in Article III (which for purposes any of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect Sections 6.01, 6.02, 6.03, 6.04, 6.05 or materiality qualifier) 6.26 shall be true and correct in all material respects on at and as of the Closing Date with the same effect Exchange Effective Time as though if made on at and as of the Closing Date such time (except for other than such representations representation and warranties made warranty that by their terms address matters only as of a another specified datetime, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to shall be true and correct in all material respects would not have a only as of such time), disregarding all Company Material Adverse Effect on qualifications contained therein, and (B) the Company.
other representations and warranties of the Company contained in the Agreement (bdisregarding all materiality and Company Material Adverse Effect qualifications contained therein) The shall be true and correct at and as of the Exchange Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such time), except, in the case of clause (B) only, for such matters as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (ii) the Company shall have performed in all material respects all of its obligations and agreements and shall have complied in all material respects with its covenants hereunder required to be performed and complied with by it hereunder at or prior to the Exchange Effective Time.; and (iii) Parent shall have received a certificate signed by an executive officer of the Company to the foregoing effect;
(A) Neither the Company nor the Bank shall have become insolvent, or made an assignment for the benefit of creditors, or failed generally to pay its debts as they become due, or become the subject of the appointment of, or taking possession by, any conservator, custodian, trustee, receiver or liquidator of any or of all or a substantial part of its properties, businesses or assets and (B) no order shall have been issued or plan made or effected by any Governmental Authority that would result in the issuance of any capital stock, voting securities or Company Securities to a Governmental Authority or would otherwise interfere with the ability of Parent to, directly or indirectly, control one hundred percent of the voting power of the Company and its Subsidiaries and one hundred percent of the Company Virginia Sub Common Stock following the Exchange Effective Time;
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this the Agreement, there shall not have been and occurred any effect, change, circumstances, conditions or developments that, individually or in the aggregate, would reasonably be continuing expected to have a Company Material Adverse Effect on the Company.Effect; and
(ed) Parent Without duplication of any conditions set forth in Section 11.01, all regulatory approvals set forth in Section 7.04 required to consummate the transactions contemplated by this Agreement, including the Transaction, shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent been obtained and shall remain in full force and effect and all statutory waiting periods in respect thereof shall have expired (all such approvals and the Company reasonably requested by expiration of all such counselwaiting periods being referred as the “Parent Requisite Regulatory Approvals”), to and no such regulatory approval shall have resulted in the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning imposition of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parentany Materially Burdensome Regulatory Condition.
Appears in 2 contracts
Samples: Transaction Agreement (Banco Santander, S.A.), Transaction Agreement (Sovereign Bancorp Inc)
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate the Mergers and the other transactions contemplated hereby shall be is subject to the fulfillment satisfaction of the following conditions unless waived by Parent:additional conditions. Parent may waive any such condition and proceed to Closing, without waiving any of its rights hereunder.
(a) The Parent shall have received the Certificates duly endorsed in blank for transfer or shall be presented with stock powers duly executed in blank;
(b) the Company shall have obtained (and shall have provided true, correct and complete copies thereof to Parent) all of the novations, assignments, waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 5.4 which are required on the part of the Company;
(c) after giving effect to the Company Disclosure Schedule, but not to any disclosure supplement, each of the representations and warranties of the Company and the Company Shareholders set forth in Article III this Agreement (which for purposes of this paragraph (ai) shall be read that is qualified as though none of them contained any to Company Material Adverse Effect or materiality qualifier) shall be true and correct in all respects on and as of the Closing Date with and (ii) that is not so qualified shall be true and correct as of the same effect Closing Date except for such breaches of representations or warranties which individually or in the aggregate could not have a Company Material Adverse Effect; provided however that to the extent such representations and warranties are specifically made as of a particular date, such representations and warranties shall be true and correct as of such date); and provided, further that the representations and warranties set forth in Section 2.35 (Disclosure) shall be true and correct as of the Closing Date as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.Closing;
(bd) The the Company and the Company Shareholders shall have performed in all material respects its obligations and agreements and shall have or complied in all material respects with its covenants agreements and covenants, required to be performed and or complied with by it hereunder at under this Agreement as of or prior to the Effective Time.Closing;
(ce) The all Options, Warrants and other securities or instruments exercisable for, exchangeable for or convertible into (x) any equity security of the Company or (y) exercisable for, exchangeable for or convertible into any security or instrument exercisable for, exchangeable for or convertible into any equity security of the Company shall have furnished Parent with a certificate dated been terminated;
(f) no Legal Proceeding (other than as disclosed on the Closing Date signed on its behalf by its President Company Disclosure Schedule) shall be pending or any Vice President threatened which if determined adversely to the effect that Company would have, individually or in the conditions set forth aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in Sections 6.3(aeffect;
(g) and (b) since the date of this Agreement there shall not have been satisfied.any material adverse change in the financial condition, properties, assets, liabilities, business, operations or prospects of the Company, whether in the ordinary course of business or otherwise;
(dh) Since since the date of this Agreement, there the Company shall not have received any Federal or SLED Contract Termination, Vendor Termination or Customer Termination;
(i) the Company shall have been released from all of its obligations under that certain Guaranty, dated as of April 23, 2008, guaranteeing the payment of certain indebtedness of RRCC Realty LLC for the benefit of the City of Claremont, New Hampshire through the Claremont Development Authority and its successors and assigns and to the extent that any Company Debt is to be continuing a Material Adverse Effect paid by Parent, at the Closing, the Parent shall have received all appropriate UCC-3 Termination Statements, if any, ready for filing from any Company Lender;
(j) none of the accounts payable of the Company to any third party vendor shall have been outstanding for more than ninety (90) days;
(k) all loans (other than advances for business expenses made in the Ordinary Course of Business) made by the Company to any Company Shareholder, director, officer or employee shall have been paid in full or otherwise discharged;
(l) the vehicle leases identified on the Company.Company Disclosure Schedule for vehicles used by Xxxxxxxx Xxxxxxx and Xxxxxxx Xxxx and for one of the vehicles used in New Hampshire by Xxxxxxx Xxxxxx shall have been paid in full by the Company or assigned to, and assumed by, Xx. Xxxxxxx, Xx. Xxxx and Xx. Xxxxxx, respectively;
(em) the Company shall have delivered to Parent the Company Certificate;
(n) each existing written employment agreement between the Company and any officer, director or employee of the Company shall have been terminated and Xxxxxxx X. Xxxxxx shall have executed and delivered to Parent an Executive Employment Agreement substantially in the form of Exhibit C attached hereto;
(o) Parent shall have received copies of the resignations, effective as of the Closing, of each director and officer of the Company (other than Xxxxxxx X. Xxxxxx and any such resignations which Parent designates, by written notice to the Company, as unnecessary);
(p) Each Company Shareholder shall have executed and delivered an Underwriter’s Lock-Up on reasonable and customary terms;
(q) Parent shall have received from each Company Stockholder a General Release substantially in the form of Exhibit D attached hereto;
(r) Parent shall have received from each of Xxxxxxxx Xxxxxxx and Xxxxxxx Xxxx an executed Confidentiality, Non-Competition and Non-Disparagement Agreement substantially in the form attached hereto as Exhibit E;
(s) Parent shall have received from Xxxxxxxxx Xxxxxx and Bass, P.A., counsel to the Company, an opinion in substantially the form attached hereto as Exhibit F addressed to Parent dated as of the Closing Date;
(t) Parent shall have received an opinion from Dechert Xxxxx Xxxx LLP, dated the Closing Datecounsel to Parent, based upon certain factual representations of in form and substance reasonably satisfactory to Parent and the Company reasonably requested by such counsel, to the effect that provided that, on the Tax Free Valuation Test is satisfiedbasis of the facts, representations and assumptions set forth in such opinion, the Mergers transactions contemplated hereby will be treated for federal income tax purposes as a reorganization within the meaning of an exchange qualifying under Section 368(a) 351 of the Code, provided, however, that if Dechert LLP does not render Code or as part of such an exchange. In rendering such opinion, this condition Parent’s counsel may require and rely on representations as to factual matters made in certificates of officers of Parent, the Company and others; and
(u) Parent shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxhave received such other certificates and instruments (including certificates of good standing of the Company) in their respective jurisdictions of organization and the various foreign jurisdictions in which they are qualified, Professional Corporationcertified charter documents, counsel certificates as to the incumbency of officers, documents necessary to transfer signing authority for all Company renders such opinion to Parentbank accounts and the adoption of authorizing resolutions as it shall reasonably request in connection with the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (FusionStorm Global, Inc.)
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate effect the Mergers and the other transactions contemplated hereby shall be Acquisition is further subject to the fulfillment satisfaction (or, to the extent permitted by applicable Law, waiver) as of the Closing of the following conditions unless waived by Parentconditions:
(a) The (i) the representations and warranties of the Company Purchaser set forth in Article III Sections 4.01(a) (which for purposes of this paragraph Organization), 4.02 (aAuthority; Execution and Delivery; Enforceability) shall be read as though none of them contained any Material Adverse Effect or materiality qualifierand 4.06 (Brokers) shall be true and correct in all respects material respects, as of the Closing as though made as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date) and (ii) all other representations and warranties of Purchaser set forth in this Agreement shall be true and correct, disregarding all qualifications or limitations as to “materiality”, “Purchaser Material Adverse Effect” and words of similar import set forth therein, as of the Closing Date with the same effect as though made as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified earlier date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties except, in the aggregate case of this clause (ii), for any failure to be true and correct in all respects that has not had and would not have a reasonably be expected to have, individually or in the aggregate, Purchaser Material Adverse Effect on the Company.Effect;
(b) The Company Purchaser shall have performed in all material respects its obligations all covenants and agreements and shall have complied in all material respects with its covenants required to be performed and complied with by it hereunder under this Agreement at or prior to the Effective Time.Closing Date;
(c) The Company Parent shall have furnished Parent with received a certificate dated the Closing Date signed on its behalf of Purchaser by its President or any Vice President to an executive officer of Purchaser certifying the effect that satisfaction by Purchaser of the conditions set forth in Sections 6.3(a9.02(a) and (b) have been satisfied.9.02(b); and
(d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.
(e) Parent Purchaser shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of executed and delivered to Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) each of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed other Transaction Documents to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parentwhich Purchaser is a party.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to ----------------------------------- consummate the Mergers Merger and the other transactions contemplated hereby shall be subject to the fulfillment of the following conditions unless waived by Parent:
(a) The representations and warranties of the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) shall be true and correct in all respects on and as of the Closing Date with the same effect as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.
(b) The Company shall have performed in all material respects its obligations each obligation and agreements agreement and shall have complied in all material respects with its covenants each covenant to be performed and complied with by it hereunder at or prior to the Effective Time.
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.
(e) Parent shall have received an opinion from Dechert LLPDechert, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.
(f) The Company shall have obtained all consents, waivers and approvals identified on Section 6.3(f) of the Company Disclosure Schedule, and such consents, waivers and approvals shall not have expired or been revoked.
(g) Holders of no more than ten percent of the outstanding shares of Company Common Stock shall have validly delivered to the Company a demand for appraisal rights with respect thereto and shall not have failed to perfect or withdraw such rights under Section 262 of the DGCL.
Appears in 1 contract
Samples: Merger Agreement (Intersil Corp/De)
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate the Mergers and the other transactions contemplated hereby shall be Closing is subject to the fulfillment satisfaction, or the waiver in Parent’s sole and absolute discretion, of all the following conditions unless waived by Parentfurther conditions:
(a) Alps Holdco, Pubco and Merger Sub shall have duly performed or complied with, in all material respects, all of their respective obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by Alps Holdco, Pubco and Merger Sub at or prior to the Closing Date.
(b) The representations and warranties of the Company set forth Alps Holdco, Pubco and Merger Sub contained in Article III this Agreement (which for purposes of this paragraph (a) shall be read as though none of them disregarding all qualifications and exceptions contained any therein relating to materiality or Material Adverse Effect or materiality qualifier) Effect), shall be true and correct in all respects on at and as of the date of this Agreement and as of the Closing Date with as if made as of such date (except to the same effect extent that any such representation and warranty is expressly made as though made on of a specific date, in which case such representation and warranty shall be true and correct at and as of the Closing Date (except such specific date), except, in each case, for any failure of such representations and warranties made as of a specified date, the accuracy of which will (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be determined as of the specified date), except for changes permitted by Section 5.3(c) so true and except where the failure of the representations and warranties correct that would not in the aggregate have or reasonably be expected to be true and correct in all respects would not have a Material Adverse Effect on in respect of the Company.
(b) The Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to the Effective TimeAlps Holdco Group as a whole.
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this Agreement, there shall not have been and occurred any Effect in respect of the Alps Holdco Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be continuing expected to have a Material Adverse Effect on in respect of the CompanyAlps Holdco Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer or another officer or a director of Alps Holdco certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 10.2.
(e) Parent shall have received an opinion from Dechert LLPa certificate, dated as of the Closing Date, based upon certain factual representations signed by the Secretary or another officer or a director of Alps Holdco attaching true, correct and complete copies of (i) the Memorandum and Articles of Association of Alps Holdco as then in force, as filed with and stamped by the Cayman Registrar; (ii) copies of resolutions duly passed by the Board of Directors of Alps Holdco authorizing this Agreement, the Additional Agreements to which Alps Holdco is a party and the transactions contemplated hereby and thereby and the Alps Holdco Shareholder Written Consent; and (iii) a certificate of good standing of Alps Holdco, issued as of a recent date (not less than three (3) days before the Closing Date) by the Cayman Registrar.
(f) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary or another officer or a director of Pubco attaching true, correct and complete copies of (i) the memorandum and articles of association of Pubco as then in force, as filed with and stamped by the Cayman Registrar; (ii) copies of resolutions duly passed by the Board of Directors of Pubco authorizing this Agreement, the Additional Agreements to which Pubco is a party and the transactions contemplated hereby and thereby; (iii) the Pubco Shareholder Approval, in each case evidencing the approval of the shareholders of Pubco, and (iv) a certificate of good standing of Pubco, issued as of a recent date (not less than three (3) days before the Closing Date) by the Cayman Registrar.
(g) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary or another officer or a director of Merger Sub attaching true, correct and complete copies of (i) the memorandum and articles of association of Merger Sub as then in force, as filed with and stamped by the Cayman Registrar; (ii) copies of resolutions duly passed by the Board of Directors of Merger Sub authorizing this Agreement, the Additional Agreements to which Mxxxxx Sub is a party and the transactions contemplated hereby and thereby; (iii) the Merger Sub Shareholder Approval duly executed by all of the shareholders of Merger Sub, and (iv) a certificate of good standing of Merger Sub, issued as of a recent date (not less than three (3) days before the Closing Date) by the Cayman Registrar.
(h) Each of Alps Holdco and the Alps Holdco Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which Alps Holdco or such Alps Holdco Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(i) The size and composition as set forth in Section 3.8 of the post-Closing Reincorporation Merger Surviving Company Board of Directors shall have been approved, with effect from the Effective Time, by resolutions of the Pubco Board of Directors.
(j) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(k) Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company reasonably requested by such counsel, Alps Holdco as to the effect that provided the Tax Free Valuation Test is satisfiedfairness from a financial point of view, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render date of such opinion, this condition shall nonetheless be deemed of the Merger Consideration Shares to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel paid to the Company renders such opinion Alps Holdco Shareholders pursuant to Parentthis Agreement.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of each of Parent and Company to consummate perform and observe the Mergers covenants, agreements and conditions hereof to be performed and observed by it at or before the other transactions contemplated hereby Closing shall be subject to the fulfillment satisfaction of the following conditions unless conditions, which may be expressly waived only in writing signed by Parent:
(a) The representations and warranties of Buyer contained herein (i) shall have been true and correct in all material respects when made, and (ii) except for changes contemplated by this Agreement or to the Company set forth in Article III extent that such representations and warranties speak as of an earlier date or only with respect to a specific period of time (which for purposes representations and warranties need only be true and correct as of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect such date or materiality qualifier) with respect to such period), shall be true and correct in all material respects on and as of the Closing Date with the same effect Date, as though made on and as of the Closing Date (except for such representations and warranties made as of a specified that date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.
(b) The Company Buyer shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants covenants, agreements and conditions required by this Agreement to be performed and or complied with by it hereunder at or them prior to or on the Effective TimeClosing Date.
(c) The Company shall have furnished Parent with a certificate dated the If Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since occurs after the date of this Agreement, there Parent shall not have received a certificate of Buyer, dated the Closing Date, in form and substance reasonably satisfactory to Parent, certifying that the conditions to the obligations of Buyer in Sections 4.2(a) and (b) of this Agreement have been and be continuing a Material Adverse Effect on the Companyfulfilled.
(d) All Required Consents set forth in Exhibit 4.1(d) shall have been obtained.
(e) The Transition Services Agreement shall have been duly executed and delivered by the parties thereto.
(f) The Trademark License shall have been executed by the parties thereto.
(g) The Promissory Note shall have been duly executed by the parties thereto and delivered to Parent.
(h) Buyer shall have delivered to Parent evidence of insurance of the type and in the amounts necessary to operate the Company and comply with all obligations after the Closing.
(i) Parent shall have received an opinion executed waiver from Dechert LLPXxxxxx Xxxx, dated in a form satisfactory to Parent, waiving any and all rights to any severance or other compensation available to Xxxxxx Xxxx pursuant to that certain Employment Agreement entered into as of May 10, 2010 by and between Xxxxxx Xxxx and Parent.
(j) Buyer shall have delivered to Parent the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested Cash Payment by such counsel, wire transfer to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to an account specified by Parent.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate the Mergers and transactions to be consummated at the other transactions contemplated hereby shall be Closing is subject to the fulfillment satisfaction (or waiver by Parent) of the following conditions unless waived by Parentconditions:
(ai) The the representations and warranties of the Company Buyer set forth in Article III this Agreement other than the representations and warranties set forth in Sections 3.1, 3.2, 3.3(a), 3.4 and Section 3.7 (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifiercollectively, the “Specified Buyer Representations”) shall be true and correct in all respects on and as of the Closing Date with the same effect as though made on and as of the Closing Date (without regard to any materiality or Buyer Material Adverse Effect qualifications contained therein), except for (A) to the extent such representations and warranties are specifically made as of a specified particular date, the accuracy of in which will case such representations and warranties shall be determined true and correct as of such date (subject to the specified datefollowing sub-clauses (B) and (C) of this clause (i)), except (B) for changes expressly contemplated or permitted by Section 5.3(cthe terms of this Agreement and (C) and except where the failure of to be true and correct would not reasonably be expected to result in a Buyer Material Adverse Effect, and (ii) the representations and warranties in the aggregate to Specified Buyer Representations shall be true and correct in all material respects would not have as of the Closing Date as though made on and as of the Closing Date, except (A) to the extent such representations and warranties are specifically made as of a Material Adverse Effect on particular date, in which case such representations and warranties shall be true and correct in all material respects as of such date (subject to the Company.following sub-clause (B) of this clause (ii)) and (B) for changes expressly contemplated or permitted by the terms of this Agreement;
(b) The Company Buyer shall have performed or complied with in all material respects its obligations and agreements and shall have complied in all material respects with its covenants required to be performed and or complied with by it hereunder at under this Agreement as of or prior to the Effective Time.Closing;
(c) The Company Buyer shall have furnished delivered to Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that each of the conditions set forth specified in Sections 6.3(aclauses (a) and (b) have been of this Section 5.2 is satisfied.;
(d) Since no judgment, order, decree, stipulation or injunction by any Governmental Entity shall be in effect which prevents consummation of any of the date of transactions contemplated by this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.;
(e) all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated; and
(f) Parent shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) all of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed items required to be satisfied with respect delivered to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel it pursuant to the Company renders such opinion to ParentSection 1.3(b).
Appears in 1 contract
Conditions to Obligations of Parent. and Sub to Effect the --------------------------------------------------------- Merger. The obligations of Parent and Sub to consummate effect the Mergers and the other transactions contemplated hereby Merger shall be subject ------ to the fulfillment at or prior to the Effective Time of the additional following conditions conditions, unless waived by Parent:
(a) The Company shall have performed in all material respects all obligations contained in this Agreement required to be performed on or prior to the Effective Time and Parent shall have received a certificate of the President or Vice-President of the Company to that effect.
(b) The representations and warranties of the Company set forth in Article III (which for purposes this Agreement shall be true and correct as of the date of this paragraph (a) Agreement, and shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) shall also be true and correct in all material respects (except for such changes as are contemplated by the terms of this Agreement and such changes as would be required to be made in the exhibits and schedules to this Agreement if such exhibits and schedules were to speak as of the Closing Date) on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date)Date, except for changes permitted by Section 5.3(c) if and except where to the failure of the representations and warranties in the aggregate extent any failures to be true and correct would not, in all respects would not the aggregate, have a Material Adverse Effect material adverse effect on the Company.
(b) The Company shall have performed in all material respects and its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to the Effective Timesubsidiaries taken as a whole.
(c) The From the date of this Agreement through the Closing Date, except as otherwise set forth in the Company Disclosure Schedule, the Company shall not have suffered any adverse changes in its business, operations or financial condition which are material to the Company and its subsidiaries taken as a whole (other than changes generally affecting the industries in which the Company operates, including changes due to actual or proposed changes in law or regulation, or changes relating to the transactions contemplated by this Agreement, including the change in control contemplated hereby).
(d) At the Closing, the Company shall have furnished Parent with a certificate dated copies of (i) resolutions duly adopted by the Closing Date signed on its behalf by its President Board of Directors of the Company approving the execution and delivery of this Agreement and all other necessary or any Vice President proper corporate action to enable the effect that Company to comply with the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date terms of this Agreement, there shall not have been and (ii) the resolution duly adopted by the holders of Shares approving and adopting this Agreement and the Merger, such resolutions to be continuing a Material Adverse Effect on certified by the Secretary or Assistant Secretary of the Company.. ***CONFIDENTIAL TREATMENT REQUESTED. 30
(e) Parent At the Closing, the Company shall have received furnished Parent with an opinion from Dechert LLPopinion, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to ParentCompany, in substantially the form attached hereto as Exhibit H.
(f) The Linn Employment Agreement and the Xxxxxxxxx Employment Agreement shall have been executed and delivered and shall be in full force and effect.
(g) The Consultant Agreement shall have been executed and delivered and shall be in full force and effect.
(h) The Escrow Agreement shall have been executed and delivered and shall be in full force and effect.
(i) The Registration Rights Agreement shall have been executed and delivered and shall be in full force and effect.
Appears in 1 contract
Samples: Merger Agreement (Earthweb Inc)
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate the Mergers and the other transactions contemplated hereby shall be is subject to the fulfillment satisfaction (or waiver by Parent) of the following conditions unless waived by Parentadditional conditions:
(a) The the Company shall have obtained (and shall have provided true, correct and complete copies thereof to Parent) all of the novations, assignments, waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 5.4 which are required on the part of the Company;
(b) after giving effect to the Company Disclosure Schedule, but not to any disclosure supplement, each of the representations and warranties of the Company set forth in Article III this Agreement (which for purposes of this paragraph (ai) shall be read that is qualified as though none of them contained any to Company Material Adverse Effect or materiality qualifier) shall be true and correct in all respects on and (ii) that is not so qualified shall be true and correct except for such breaches of representations or warranties which individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect; provided however that to the extent such representations and warranties are specifically made as of a particular date, such representations and warranties shall be true and correct as of such date; and provided, further that the representations and warranties set forth in Section 2.35 (Disclosure) shall be true and correct as of the Closing Date with the same effect as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.Closing;
(bc) The the Company shall have performed in all material respects its obligations and agreements and shall have or complied in all material respects with its covenants agreements and covenants, required to be performed and or complied with by it hereunder at under this Agreement as of or prior to the Effective Time.
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.Closing;
(d) Since no Legal Proceeding shall be pending or threatened which if determined adversely to the Company would have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(e) since the date of this Agreement, there shall not have been and be continuing a no Company Material Adverse Effect on the Company.
(e) Parent shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.occurred;
Appears in 1 contract
Samples: Stock Purchase Agreement (FusionStorm Global, Inc.)
Conditions to Obligations of Parent. The obligations obligation of Parent and Merger Sub to consummate the Mergers and the other transactions contemplated hereby shall be Closing is subject to the fulfillment satisfaction, or the waiver at Parent’s sole and absolute discretion, of all the following conditions unless waived by Parentfurther conditions:
(a) The Company shall have duly performed all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of the Company set forth contained in Article III this Agreement, and in any certificate delivered by the Company pursuant hereto, shall: (which for purposes of this paragraph (ai) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) shall be true true, correct and correct in all respects on complete at and as of the Closing Date with date of this Agreement (except as provided in the same effect disclosure schedules or as though provided for in Article IV), or, (ii) if otherwise specified, when made on or when deemed to have been made, and (iii) be true, correct and complete as of the Closing Date Date, in the case of (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(ci) and except where the failure of the representations and warranties (ii) with only such exceptions as could not in the aggregate reasonably be expected to be true and correct in all respects would not have a Material Adverse Effect on the CompanyEffect.
(bc) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect.
(d) Parent Parties shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company to the effect set forth in clauses (a) through (c) of this Section 9.2.
(e) No court, arbitrator or other Authority shall have issued any judgment, injunction, decree or order, or have pending before it a proceeding for the issuance of any thereof, and there shall not be any provision of any applicable Law restraining or prohibiting the consummation of the Closing, or the effective operation of the Business by the Company after the Closing Date.
(f) Parent Parties shall have received copies of all required third party consents, in form and substance reasonably satisfactory to Parent, and no such third party consents shall have been revoked.
(g) Parent Parties shall have received copies of all Governmental Approvals, in form and substance reasonably satisfactory to Parent Parties, and no such Governmental Approval shall have been revoked.
(h) Parent Parties shall have received Schedules updated as of the Closing Date.
(i) The requisite shareholders of Parent shall have approved the transactions contemplated by this Agreement in accordance with the provisions of Parent’s organizational documents and BVI Law.
(j) The Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to completed the Effective TimeFinancing.
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.
(e) Parent shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate the Mergers and the other transactions contemplated hereby Merger shall be subject to the fulfillment satisfaction of the following conditions unless waived conditions, any or all of which may be waived, in whole or in part, by Parent:
(ai) The representations and warranties of the Company set forth and the Holders contained in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) Agreement shall be true and correct in all material respects on at and as of the Closing Date with the same force and effect as though made on and as of such date; provided however, that in the Closing Date (except for event of a breach of a representation or warranty, the condition set forth in this Section 7.2(a)(i) shall be deemed satisfied unless the effect of all such breaches of representations and warranties made as of a specified date, the accuracy of which will taken together could reasonably be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties expected to result in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on Effect; and (ii) each and all of the Company.
(b) The Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with or satisfied by it the Holders or the Company hereunder at or prior to the Effective Time.Closing Date shall have been duly performed or satisfied;
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this Agreement, there shall not have been and any event, change, circumstance or occurrence that has had or would reasonably be continuing expected to have a Material Adverse Effect on Effect;
(c) The Company shall have delivered, or caused to be delivered, to Parent each of the following executed documents, each in customary form reasonably acceptable to Parent:
(i) a copy of resolutions of the managers and members of the Company.
(e) Parent shall have received , and of the directors and, if necessary, stockholder of Common Blocker, authorizing the execution, delivery and performance of this Agreement by the Company and the Common Blocker, respectively, and of the Organizational Documents of the Company and each of its Subsidiaries and the Common Blocker, and an opinion from Dechert LLPofficer’s certificate of the Company, dated the Closing Date, based upon that such resolutions were duly adopted and that such documents have not been amended, and that all are in full force and effect;
(ii) a FIRPTA certificate in accordance with Section 1445 of the Code and the applicable Treasury regulations certifying that such Holder is not a foreign Person in a form reasonably acceptable to Parent;
(iii) the Certificate of Merger, to be held in escrow by Parent until receipt of the Closing Payment in the account (or accounts) designated by the Holders’ Representative pursuant to Section 2.7 hereof;
(iv) an officer’s certificate of the Company certifying to the fulfillment of the conditions set forth in subsections 7.2(a) and (b);
(v) an officer’s certificate of the Company, certifying as to the genuineness of the signatures of officers of the Company authorized to take certain factual representations actions or execute any certificate, document, instrument or agreement to be delivered pursuant to this Agreement, which incumbency certificate shall include the true signatures of such officers;
(vi) the Indemnity Escrow Agreement;
(vii) the True-Up Escrow Agreement;
(viii) resignations of the Company’s directors and resignations of any directors of the Company’s Subsidiaries that are appointed by the Company; and
(ix) evidence of the tail insurance coverage contemplated by Section 6.9.
(d) The Company shall have obtained and delivered to Parent the Required Consents and the Required Notices marked with an asterisk in Section 3.1(c) of the Disclosure Schedule;
(e) The Company shall have caused its legal counsel to deliver to Parent the written opinions (a corporate opinion of Xxxx Xxxxxxx & Xxxxxx LLP and a regulatory opinion of Xxxxx Xxxxxxx & Xxxxxxx, Chartered) set forth on Exhibit D hereto, which opinions shall be dated the Closing Date and shall contain only such changes as shall be in form and substance reasonably satisfactory to Parent and its counsel;
(f) The Parent shall have consummated the financing on the terms substantially set forth in the Commitment Letter;
(g) The Company shall have provided Parent with payoff letters with respect to all Indebtedness of the Company and its Subsidiaries (except with respect to Indebtedness owed by Commnet of Florida, LLC to the Company) in form and substance reasonably requested by satisfactory to Parent (which shall include giving Parent the authority to file any related Lien releases) (the “Payoff Letters”);
(h) The FCC Grant shall have become a Final Order;
(i) All other authorizations, consents or approvals required to be obtained from, and all notices required to be given to, all Governmental Authorities or any other Person prior to the consummation of the Merger, shall have been obtained from or given to all such counselGovernmental Authorities or any other Person; and
(j) Each of the Holders shall have entered into an agreement terminating as of the Closing Date the Existing Agreements, to the effect that provided extent such Holder is a party to any Existing Agreement (the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent“Termination Agreement”).
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers and the other transactions contemplated hereby by this Agreement shall be subject to the fulfillment fulfillment, at or prior to the Closing, of each of the following conditions unless conditions, any of which may be waived in writing by ParentParent in its sole discretion:
(a) The representations and warranties of the Company set forth contained in Article III this Agreement or any certificate delivered pursuant hereto (which for purposes other than any Company Fundamental Representations and the representations and warranties of this paragraph (athe Company contained in Section 4.22(e)) shall be read true and correct both when made and as though none of them contained 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 as of such specified date), except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Company Material Adverse Effect Effect” set forth therein) would not, individually or materiality qualifierin the aggregate, reasonably be expected to have a Material Adverse Effect. The Company Fundamental Representations (other than Section 4.4) and the representations and warranties of the Company contained in Section 4.22(e) shall be true and correct in all material respects on both when made and as of the Closing Date with Date, or in the same effect case of representations and warranties that are made as though of a specified date (such representations and warranties shall be true and correct in all material respects as of such specified date). The representations and warranties contained in Section 4.4 shall be true and correct in all respects both when made on and as of the Closing Date (except for such or in the case of representations and warranties that are made as of a specified date, the accuracy of which will such representations and warranties shall be determined true and correct as of the such specified date), except for changes permitted by Section 5.3(c) de minimis inaccuracies. The Sellers and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.
(b) The Company shall have performed in all material respects its all obligations and agreements and shall have complied in all material respects with its all covenants required by this Agreement to be performed and or complied with by it hereunder at or prior to or at the Effective TimeClosing.
(b) Since the Agreement Date, no Company Material Adverse Effect shall have occurred and be continuing.
(c) The Company Parent shall have furnished Parent with received from the Company a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect certifying that the conditions set forth in Sections 6.3(a7.3(a) and (b7.3(b) have been satisfied, signed by a duly authorized officer thereof.
(d) Since the date of this Agreement, there The Ancillary Agreements shall be in full force and effect and have not have been and be continuing a Material Adverse Effect on the Companyrescinded or repudiated by any party thereto (other than Parent or Merger Sub.
(e) Parent The Company Entities shall have received an opinion from Dechert LLPsatisfied the following conditions:
(i) with respect to the CS Borrower LLC Facility, the Company Entities shall have obtained all necessary consents, approvals, amendments and waivers necessary pursuant to the terms of the agreement dated March 10, 2021 in respect of such facility, such that immediately after giving effect to the transactions contemplated hereby on the Closing Date (including the Merger), no Securitization Default shall occur under the CS Borrower LLC Facility, and such related Warehouse Amendments shall be deemed effective substantially concurrent with (and no later than the occurrence of) the Merger;
(ii) have in effect or have obtained commitments under the Deutsche Bank Warehouse Facility and the CS VFN Facility which commitments in the aggregate shall be no less than the Minimum Warehouse Commitment Amount and the Company Entities shall have obtained pursuant to the terms set forth in the applicable Warehouse Commitment Letter all necessary consents, approvals, amendments and waivers necessary such that immediately after giving effect to the transactions contemplated hereby on the Closing Date (including the Merger), no Securitization Default shall occur under the Deutsche Bank Warehouse Facility and the CS VFN Facility, and such related Warehouse Amendments shall be deemed effective substantially concurrent with (and no later than the occurrence of) the Merger;
(iii) with respect to any other Company Warehouse Facilities that remain outstanding on or after the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by Entities shall have obtained all necessary consents, approvals, amendments and waivers necessary such counsel, that immediately after giving effect to the effect that transactions contemplated hereby on the Closing Date (including the Merger), no Securitization Default shall occur thereunder, provided the Tax Free Valuation Test is satisfiedthat, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) any such consents, approvals, amendments and waivers shall not change any existing right of the Codeborrower parties to terminate early at their option and prepay such facility without penalty, provided, however, that if Dechert LLP does not render such opinion, this condition and any related Warehouse Amendments shall nonetheless be deemed to be satisfied effective substantially concurrent with (and no later than the occurrence of) the Merger; and
(iv) with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxany Company Warehouse Facilities where the Company Entities have been unable to obtain all necessary consents, Professional Corporationapprovals, counsel amendments and waivers necessary such that immediately after giving effect to the transactions contemplated hereby on the Closing Date (including the Merger), no Securitization Default shall occur thereunder, the Company renders such opinion Entities with prior notice to Parent, shall have, on or prior to the Closing Date, paid down the outstanding loan balance to zero and terminated all outstanding obligations relating thereto so that each related Securitization Instrument is no longer in full force and effect, and shall provide evidence of such termination as reasonably satisfactory to Parent; provided, that with respect to this Section 7.3(e), any fees, including amendment fees, bank fees, consent fees, commitment fees or termination fees incurred by or on behalf of the Company or any Company Entity directly related to such consents, approvals, amendments, waivers, commitment increases or termination (collectively, the “Specified Warehouse Fees”) shall be borne fifty percent (50%) by the Sellers and fifty percent (50%) by Parent.
(f) Immediately after giving effect to the transactions contemplated by this Agreement (including the Merger, the assumption of the Unsecured Indenture by HGV Borrower, the payoff of the Funded Indebtedness, and the borrowings under the Committed Debt Financing), there shall be no Indenture Default.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate carry out the Mergers and the other transactions contemplated hereby shall be subject by this Agreement are subject, at the option of Parent, to the fulfillment satisfaction or waiver by Parent of the following conditions unless waived by Parentconditions:
(a) The All representations and warranties of the Company set forth and the Owners contained in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) Agreement shall be true and correct in all material respects on at and as of the Closing Date with Closing, and (ii) the same effect as though made on Company and as of the Closing Date (except for such representations Owners shall have performed and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted satisfied in all material respects all agreements and covenants required by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate this Agreement to be true performed and correct satisfied by them at or prior to the Closing, including the items set forth in all respects would not have a Material Adverse Effect on the CompanySection 2.8(a).
(b) The As of the Closing Date, no suit, action or other proceeding (excluding any such matter initiated by or on behalf of Parent or any of its Affiliates) shall be pending or threatened before any court or governmental agency seeking to restrain Parent or prohibit the Closing or seeking Damages against Parent or the Company shall have performed in all material respects or its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to Properties as a result of the Effective Timeconsummation of this Agreement.
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed certified copy of all necessary corporate and stockholder action on its behalf by its President or any Vice President to approving the effect that Company’s execution, delivery and performance of this Agreement and the conditions set forth in Sections 6.3(a) and (b) have been satisfiedMerger.
(d) Since Parent shall have received the date opinion letter of this AgreementXxxxx & Xxxxxxx LLP, counsel to the Company (“Company Counsel”), dated as of the Closing Date, addressed to Parent and containing such exceptions and assumptions and in form and substance which are reasonably satisfactory to Parent, and addressing the legal opinions substantially similar to those set forth on Exhibit A hereto. In rendering such opinion letter, Company Counsel may rely as to factual matters on certificates of officers, directors and stockholders of the Company and on certificates of governmental officials.
(e) Except for matters disclosed in Schedule 3.9(a) or Schedule 3.9(b) hereto, since the Balance Sheet Date and up to and including the Closing, there shall not have been and be continuing a any Material Adverse Effect on the CompanyEffect.
(ef) Parent shall have received evidence that the agreements set forth on Schedule 6.2(f) hereto have been terminated.
(g) Parent shall have received evidence, in form and substance satisfactory to Parent, of (x) the termination or expiration of the HSR Act waiting period related to the Merger, and (y) the consent to the transactions contemplated by this Agreement of all Persons, Governmental Authorities, quasi-governmental and private third parties (including, without limitation, Persons leasing real or personal property to the Company) listed on Schedule 6.2(g).
(h) No proceeding in which the Company, the Subsidiary or any Owner shall be a debtor, defendant or party seeking an opinion order for its own relief or reorganization shall have been brought or be pending by or against such Person under any United States or state bankruptcy or insolvency law.
(i) Parent shall have received copies of the Pay-Off Letters and other evidence, reasonably satisfactory to it, setting forth the amount of funds necessary for the termination, at or prior to Closing, of all Funded Indebtedness and any and all Liens, other than Permitted Liens, that encumber the Company’s Properties pursuant thereto.
(j) Parent shall have obtained financing for the transactions contemplated hereby on substantially the terms set forth on the Debt Commitment Letter or reasonably equivalent substitute terms.
(k) Parent shall have received all audited historical and unaudited pro forma Financial Statements with respect to the Company, if any, together with any required consent of the Company’s independent public accountants, that may be required to be included in Parent’s Current Report on Form 8-K to be filed in connection with this Agreement and the Merger.
(l) Parent shall have received from Dechert LLPthe Company (i) evidence that upon the Effective Time the Bonus Plans shall be terminated, dated (ii) a certificate setting forth the amounts owed pursuant to the Bonus Plans through the Closing Date, based and (iii) written acknowledgements from the participants under the Bonus Plans that upon certain factual representations receipt of Parent and such payments the Company reasonably requested by such counsel, to shall have satisfied its obligations under the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to ParentBonus Plans in full.
Appears in 1 contract
Samples: Merger Agreement (Roadrunner Transportation Systems, Inc.)
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate the Mergers and the other transactions contemplated hereby shall be Closing is subject to the fulfillment satisfaction, or the waiver at Parent’s sole and absolute discretion, of all the following conditions unless waived by Parentfurther conditions:
(a) The Company shall have duly performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of the Company set forth contained in this Agreement, the Additional Agreements and in any certificate delivered by the Company pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall:
(i) be true, correct and complete in all material respects (1) at and as of the date of this Agreement (except as provided in the disclosure schedules or as provided for in Article III (which for purposes of this paragraph V) hereof, or, (a2) shall if otherwise specified, when made or when deemed to have been made, and
(ii) be read as though none of them contained any Material Adverse Effect or materiality qualifier) shall be true true, correct and correct in all respects on and complete as of the Closing Date with the same effect only such exceptions as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties could not in the aggregate reasonably be expected to be true and correct in all respects would not have a Material Adverse Effect on the Company.
(b) The Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to the Effective TimeEffect.
(c) The Company There shall have furnished Parent been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfiedMaterial Adverse Effect, regardless of whether it involved a known risk.
(d) Since Parent shall have received a certificate signed by the date Chief Executive Officer and Chief Financial Officer of the Company to the effect set forth in clauses (a) through (c) of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the CompanyArticle 9.2.
(e) Parent shall have received an opinion copies of all required third party consents (including the consents of the landlords under the Leases and the consents of lenders), in form and substance reasonably satisfactory to Parent, and no such third party consents shall have been revoked.
(f) Parent shall have received copies of all Governmental Approvals, in form and substance reasonably satisfactory to Parent, and no such Governmental Approval shall have been revoked.
(g) The Restructuring shall have been completed.
(h) Parent shall have received Schedules from Dechert LLP, dated Company updated as of the Closing Date, based upon certain factual representations of Parent and which shall not be materially different than the Schedules provided by Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, date hereof.
(i) The requisite majority of Parent’s shareholders shall have approved the transactions contemplated by this condition Agreement in accordance with the provisions of Parent’s organizational documents and Delaware Law.
(j) Purchaser shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to have completed its due diligence investigation of the Company renders such opinion to ParentCompany.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers and the other transactions contemplated hereby by this Agreement shall be subject to the fulfillment or Parent’s waiver, at or prior to the Closing, of each of the following conditions unless waived by Parentconditions:
(a) The Other than the representations and warranties of Company Member contained in Section 3.01, Section 3.02, Section 3.03, and Section 3.21, the representations and warranties of Company set forth Member contained in Article III this Agreement and any certificate or other writing delivered pursuant hereto (which for purposes of this paragraph (a) shall be read as though none of them contained any disregarding all materiality and Material Adverse Effect or materiality qualifiercontained therein) shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made on at and as of the Closing Date such date (except for such representations those representation and warranties made that address matters only as of a specified date, the accuracy of which will shall be determined as of the that specified date), except for changes permitted by Section 5.3(cdate in all respects) other than such failure to be true and except where the failure of the correct as would not have a Material Adverse Effect. The representations and warranties of Company Member contained in the aggregate to Section 3.01, Section 3.02, Section 3.03, and Section 3.21 shall be true and correct in all material respects would not have on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a Material Adverse Effect on specified date, the Companyaccuracy of which shall be determined as of that specified date in all respects).
(b) The Company R&W Insurance shall have performed in all material respects its obligations and agreements and been obtained contemporaneously or prior to Closing.
(c) Company Member shall have duly performed and complied in all material respects with its all agreements, covenants and conditions required by this Agreement to be performed and or complied with by it hereunder at or prior to or on the Effective Time.
(c) The Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Company Member shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth performed such agreements, covenants and conditions, as so qualified, in Sections 6.3(a) and (b) have been satisfiedall respects.
(d) Since No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which enjoins, restrains or otherwise prohibits the transactions contemplated hereby.
(e) From the date of this Agreement, there shall not have been and be continuing a occurred any Material Adverse Effect on the CompanyEffect.
(ef) Parent shall have received an opinion from Dechert LLPa certificate, dated the Closing DateDate and signed by a duly authorized officer of Company, based upon certain factual representations that each of the conditions set forth in Section 7.02(a) and Section 7.02(c) have been satisfied.
(g) Parent shall have received resignations or terminations of the directors and officers of the Company reasonably requested by such counselpursuant to Section 5.05.
(h) Company Member shall have delivered, or caused to be delivered, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed Parent all items required to be satisfied with respect delivered by it pursuant to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to ParentSection 2.03.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate effect the Mergers and the other transactions contemplated hereby Merger shall be subject to the fulfillment satisfaction on or prior to the Closing Date of each of the following conditions unless waived by Parent:
(a) The (i) the representations and warranties of the Company set forth in Article III (this Agreement which for purposes of this paragraph (a) shall be read as though none of them contained any are not qualified by the phrase "Material Adverse Effect on Company" or otherwise qualified by materiality qualifiershall have been true and correct in all respects at and as of the date of this Agreement and shall be true and correct in all material respects at and as of the Closing Date as though made at and as of the Closing Date, except to the extent such representations and warranties speak as of a specified date (which representations and warranties shall be true and correct as of such date) and except to the extent contemplated by this Agreement, (ii) the representations and warranties of Company set forth in this Agreement which are not qualified by the phrase "Material Adverse Effect on Company" but are otherwise qualified by materiality shall be true and correct in all respects on at and as of the date of this Agreement and at and as of the Closing Date with the same effect as though made at and as of the Closing Date, (iii) the representations and warranties of Company set forth in this Agreement which are qualified by the phrase "Material Adverse Effect on Company" shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though 52 57 made at and as of the Closing Date, provided, however, that for purposes of determining the satisfaction of the condition contained in this clause (except for iii) such representations and warranties made as of a specified date, the accuracy of which will shall be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate deemed to be true and correct in all respects unless the failure or failures of such representations and warranties to be so true and correct (without giving effect to any exception or "Material Adverse Effect on Company" qualifier), individually or in the aggregate, results or would not have reasonably be expected to result in a Material Adverse Effect on Company, and (iv) the Companyrepresentations and warranties of the Identified Shareholders shall have been true and correct in all respects at and as of the date of this Agreement and shall be true and correct at and as of the Closing Date as if made at and as of the Closing Date.
(b) The Company shall have performed in all material respects its obligations all covenants and agreements and shall have complied in all material respects with its covenants required to be performed and complied with by it hereunder under this Agreement at or prior to the Effective TimeClosing Date.
(c) The Company shall have furnished furnish Parent with a certificate dated the Closing Date signed on of (i) its behalf by its President or any Vice President appropriate officers as to the effect that compliance with the conditions set forth in Sections 6.3(a6.3(a)(i), (ii) and (biii) have been satisfiedand Section 6.3(b) and (ii) the Identified Shareholders as to compliance with the conditions set forth in Section 6.3(a)(iv).
(d) Since Parent shall have received from Deloitte & Touche LLP (A) letters dated (i) the date of this Agreementthe Proxy Statement and (ii) the Closing Date, there shall not have been with respect to certain financial information regarding Company included in the Proxy Statement, in each case in form and be continuing a Material Adverse Effect on substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with proxy statements similar to the CompanyProxy Statement and (B) an agreed upon procedures report dated the Closing Date with respect to the unaudited consolidated balance sheet and related unaudited consolidated results of operations, shareholders' equity and cash flow of Company for the quarter ended December 31, 1998 and each month ended during the period between January 1, 1999 and the Closing Date (the "Bring-Down Financial Statements").
(e) Parent shall have received an opinion Affiliates Letter from Dechert LLPeach possible "affiliate" described in Section 5.16.
(f) Parent shall have received an opinion, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx O'Melveny & Xxxxxx, Professional CorporationMyerx XXX, counsel to Company, in the form previously agreed to by Parent and Company.
(g) No suit, investigation, action or other proceeding (i) shall be pending or overtly threatened against Parent, Company or any of the Company renders such opinion Subsidiaries by any governmental agency which seeks to restrain or prohibit the consummation of the Merger, (ii) shall be pending against Parent., Company or any of the Company Subsidiaries that seeks damages or other relief in connection with this Agreement or the consummation of the transactions contemplated
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers Merger and the other transactions contemplated hereby shall be subject to the fulfillment of the following conditions unless waived by Parent:
(a) The representations and warranties of the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) shall be true and correct in all respects on and as of the Closing Date with the same effect as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.
(b) The Company shall have performed in all material respects its obligations each obligation and agreements agreement and shall have complied in all material respects with its covenants each covenant to be performed and complied with by it hereunder at or prior to the Effective Time.
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.
(e) Parent shall have received an opinion from Dechert LLPDechert, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.
(f) The Company shall have obtained all consents, waivers and approvals identified on Section 6.3(f) of the Company Disclosure Schedule, and such consents, waivers and approvals shall not have expired or been revoked.
(g) Holders of no more than ten percent of the outstanding shares of Company Common Stock shall have validly delivered to the Company a demand for appraisal rights with respect thereto and shall not have failed to perfect or withdraw such rights under Section 262 of the DGCL.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations obligation of Parent and Sub to consummate effect the Mergers and the other transactions contemplated hereby shall be Transactions is subject to the fulfillment at or prior to the Closing Date of the following conditions unless waived by Parentadditional conditions:
(a) The representations and warranties of since the Company set forth in Article III (which for purposes date of this paragraph (a) shall be read as though none of them contained any Agreement and through the period ending immediately prior to the Effective Time, no Cap Rock Material Adverse Effect or materiality qualifier) shall have occurred and be true and correct in all respects on and as of the Closing Date with the same effect as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.continuing;
(b) The the Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its the covenants and agreements contained in this Agreement which are required to be performed and complied with by it hereunder at the Company on or prior to the Effective Time.Closing Date;
(c) The the representations and warranties of CES which are set forth in Article V and of the Company which are set forth in Article VI shall be true and correct as of the Effective Time as though made at and as of the Effective Time (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, does not have and is not reasonably expected to have a Cap Rock Material Adverse Effect (except to the extent that any such representation and warranty speaks as of a particular date, in which case such representation and warranty need only be true and correct as of such date);
(d) Parent shall have furnished Parent with received a certificate from the Chief Executive Officer of the Company, dated the Closing Date signed on its behalf by its President or any Vice President Date, to the effect that that, to the best of such officer’s knowledge, the conditions set forth in Sections 6.3(a9.02(b) and (b9.02(c) with respect to the Company have been satisfied.
(d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.;
(e) Parent shall have received a certificate from an opinion from Dechert LLPauthorized signatory of CES, dated the Closing Date, based upon certain factual representations to the effect that, to the best of such officer’s knowledge, the conditions set forth in Sections 9.02(b) and 9.02(c) with respect to CES have been satisfied;
(f) (i) the Required Regulatory Approvals shall have been obtained and become Final Regulatory Orders and (ii) no terms shall have been imposed in connection with such Final Regulatory Orders by any Governmental Entity which terms would reasonably be expected to have a Cap Rock Material Adverse Effect, or impose any material adverse requirements, on Parent or any of its Affiliates or on any operations or assets of Parent or any of its Affiliates;
(g) the Company Stockholders shall have approved and adopted this Agreement in accordance with the DGCL;
(h) Parent shall have received copies of the resignations of the Specified Employees and directors of each of the Cap Rock Entities, and releases from such persons of any and all Claims and rights to payment of any kind against any Cap Rock Entity (other than any Claims or rights to payment arising under this Agreement), effective as of the Closing, other than any such resignations and releases that Parent designates, by written notice to the Company, as unnecessary), and officers and directors for each Cap Rock Entity who are designated by Parent in its discretion shall have been elected or appointed effective as of the Closing;
(i) CES or any of its Affiliates (or any member, manager, partner, officer, director, employee or agent of CES or any Affiliate) shall have effectively terminated any Contract such Person may have with any Cap Rock Entity and all Claims and rights to payment of any kind by or against any Cap Rock Entity thereunder (other than any Claims or rights to payment arising under this Agreement) shall have been released (for purposes of this Section 9.02(i) the Company and other Cap Rock Entities shall be deemed not to be Affiliates of CES), and any such individual serving as an officer of a Cap Rock Entity shall have resigned;
(j) Parent shall have received (i) consents and approvals from third parties for the acquisition of the Company and other Cap Rock Entities (other than Required Regulatory Approvals), or alternate arrangements in lieu thereof, sufficient for the conduct and operation of the Business following Closing in all material respects in the same manner as conducted immediately prior to Closing, without the imposition of material conditions and (ii) consents to the change of control of the Cap Rock Entities from the counterparties under the power purchase agreements or power supply agreements with respect to the Business such that, after taking into account the availability of power contracts from other sources and the then current electricity supply plan of the Business and any requirements imposed by the PUCT, Parent and the Company reasonably requested by such counsel, Cap Rock Entities will not be subject to any meaningful incremental risk of significant disallowance of its pass-through of electric supply or energy costs to ratepayers;
(k) CES shall have delivered to Parent at or prior to the effect that provided Closing certificates of good standing and certified charter documents with respect to CES and each Cap Rock Entity (dated as of a recent date prior to the Tax Free Valuation Test is satisfiedClosing Date but in no event more than 15 Business Days before the Closing Date), issued by the Secretary of State of Delaware with respect to CES, the Mergers will be treated Company and Cap Rock Intermediate, and issued by the Secretary of State of Texas with respect to Cap Rock Energy and NewCorp;
(l) a copy, certified by an authorized officer or manager of CES, of resolutions authorizing the execution and delivery of this Agreement and the consummation of the Transactions, together with a certificate by the Secretary or manager of CES as to the incumbency of those officers or managers authorized to execute and deliver this Agreement;
(m) a copy, certified by an authorized officer of the Company, of resolutions of the directors and of the shareholders of the Company authorizing the execution and delivery of this Agreement and the consummation of the Transactions, together with a certificate by the Secretary or manager of the Company as to the incumbency of those officers authorized to execute and deliver this Agreement and the Certificate of Merger;
(n) Parent shall have received such other certificates and instruments, including documents necessary to transfer signing authority for federal income tax purposes all bank and investment accounts of the Cap Rock Entities and the adoption of authorizing resolutions, as it shall reasonably request in connection with the Closing;
(o) Company Stockholders holding not more than 1% of the shares of the Company Common Stock outstanding immediately prior to the Effective Time have elected to dissent pursuant to Section 262;
(p) The SEMCO Note shall have been acquired by CES on or prior to the Closing Date and the proceeds thereof shall have been used by the Company to pay down its Indebtedness;
(i) All Outstanding Indebtedness shall have been paid and discharged in full and all Encumbrances securing such Cap Rock Indebtedness shall have been terminated and released, and (ii) any other Encumbrance that is not a Permitted Encumbrance (whether or not securing Outstanding Indebtedness), shall have been terminated and released;
(r) CES shall have delivered to Parent, at or immediately prior to Closing, a consolidated balance sheet for CES and its subsidiaries prepared on a pro forma basis after giving effect to the consummation of the Transactions at the Closing and to the consummation of the transactions under the Asset Purchase Agreement at the “Closing” under the Asset Purchase Agreement as if consummated as of the end of the last quarter ending prior to the Closing, and showing a consolidated net worth of at least $400,000,000, and certified by CES as a reorganization within the meaning of Section 368(a) good faith estimate of the Code, consolidated pro forma financial condition of CES and its subsidiaries as of the end of such quarter;
(s) The Material Business Agreements set forth on Schedule 1.01-J shall have been terminated effective at or prior to the Closing (the “Specified Agreements”) and without any further liability of any Cap Rock Entity arising thereunder; and
(t) There shall be at least a $1 million cash balance in the Disbursement Account on the Closing Date; provided, however, that if Dechert LLP does not render the amount of unclaimed funds of former stockholders of Cap Rock Energy is less than $1,000,000, the required cash balance in the Disbursement Account on the Closing Date pursuant to this clause (t) shall be equal to such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parentunclaimed amount.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers and the other transactions contemplated hereby Transactions shall be subject to the fulfillment or Parent’s waiver, at or prior to the Closing, of each of the following conditions unless waived by Parentconditions:
(a) The representations and warranties of the Company set forth contained in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) 4 and Article 5 shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made on at and as of the Closing Date such date (except for such those representations and warranties made that address matters only as of a specified date, the accuracy of which will shall be determined as of the that specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct date in all respects would not have a Material Adverse Effect on the Companyrespects).
(b) The Company Group Companies and the Members shall have duly performed in all material respects its obligations and agreements and shall have complied in all material respects with its all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed and or complied with by it hereunder at or prior to or on the Effective TimeClosing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company and the Members shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) The Company All registrations, filings, applications, notices, consents, approvals, orders, qualifications and waivers listed on Section 9.2(c) of the Disclosure Schedule shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President been filed, made or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfiedobtained, as applicable.
(d) Since From the date of this Agreement, there shall not have been and occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be continuing expected to result in a Material Adverse Effect on the CompanyEffect.
(e) Parent shall have completed due diligence to its satisfaction as determined in its sole discretion.
(f) Parent shall have received estoppel certificates and non-disturbance agreements from the lessor of each Leased Real Property addressed to the Group Companies in customary form.
(g) The Company shall have delivered an opinion from Dechert LLPEstimated Closing Statement pursuant to Section 3.1(a) in form reasonably approved by Parent.
(h) The Company and the Members shall have delivered each of the closing deliverables set forth in Sections 2.2 and 2.3.
(i) The form and substance of all certificates, dated the Closing Dateinstruments, based upon certain factual representations of opinions and other documents delivered to Parent under this Agreement shall be satisfactory in all reasonable respects to Parent and the Company reasonably requested by such its counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent and Merger Sub to consummate carry out the Mergers and the other transactions contemplated hereby shall be subject by this Agreement are subject, at the option of Parent, to the fulfillment satisfaction or waiver by Parent of the following conditions unless waived by Parentconditions:
(ai) The representations and warranties of Adjoined and the Company set forth Owners contained in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) Agreement shall be true and correct in all respects on at and as of the Closing Date with the same effect as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (ii) Adjoined and the Owners shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by them at or prior to the Closing.
(b) As of the Closing Date, no suit, action or other proceeding (excluding any such matter initiated by or on behalf of Parent or Merger Sub) shall be pending before any court or governmental agency seeking to restrain Parent or Merger Sub or prohibit the Closing or seeking Damages against Parent, Adjoined, any of the Subsidiaries or any of their respective Properties as a result of the consummation of this Agreement.
(c) Parent shall have received the opinion of Winston & Xxxxxx LLP (or other counsel reasonably acceptable to Parent) an opinion, on the basis of the representations and warranties set forth in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.
(b) The Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to the Effective Time.
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President such opinion, to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.
(e) Parent shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers Merger will be treated for federal income tax purposes taxes as a reorganization within the meaning of Section 368(a) of the Code. In rendering its opinion, providedsuch counsel shall be entitled to rely upon the representations of Parent and Adjoined that are provided pursuant to Section 5.11(b) hereof.
(d) Since December 31, however2005 and up to and including the Closing, there shall not have been any event, circumstance, change or effect that, individually or in the aggregate, had or could reasonably be expected to have a Material Adverse Effect.
(e) All applicable waiting periods (and extensions thereof) under the HSR Act shall have expired or otherwise been terminated.
(f) The Escrow Agent shall have executed and delivered to Parent the Escrow Agreement.
(g) Parent shall have obtained financing for the transactions contemplated hereby in accordance with the Commitment Letter.
(h) The Dissenting Shares shall not constitute more than five percent (5%) of the outstanding shares of Adjoined’s capital stock.
(i) No proceeding in which Adjoined or any Subsidiary shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against such Person under any United States or state bankruptcy or insolvency law.
(j) The Certificate of Merger shall have been accepted for filing with the Delaware Secretary of State.
(k) Each of the Key Employees shall be an active employee of the Company as of the Closing Date.
(l) Parent shall have received written evidence, reasonably satisfactory to Parent, that if Dechert LLP does not render such opinion, this condition the consents and approvals set forth on Schedule 6.2(l) shall nonetheless be deemed to be satisfied with respect have been obtained.
(m) Adjoined shall have delivered to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxthe documents set forth in Section 2.6(a).
(n) Parent shall have received executed copies of Parent’s standard Employee Non-Disclosure, Professional Corporation, counsel Development and Non-Solicitation Agreement letter in substantially the same form as Exhibit C from (i) at least 90% (rounded down to the next whole number) of the Company renders employees listed on Schedule 6.2(n), and (ii) at least 75% (rounded down to the next whole number) of all other Company employees.
(o) Adjoined shall have (i) terminated the employment of the individual(s) set forth on Schedule 6.2(o) (the “Terminated Employees”), (ii) delivered to Parent copies of agreements, in form and substance reasonably satisfactory to Parent (it being agreed that any agreed-upon payments to the Terminated Employees will be made subsequent to the Effective Time), in settlement and complete release of all claims such opinion Terminated Employees may have against the Company in connection with their respective employment with the Company, and (iii) prior to the Closing Date, made a severance accrual equal to six (6) months of each Terminated Employee’s then base salary.
(p) Adjoined shall have adopted a resolution of its board of directors terminating, effective as of the day immediately prior to the Effective Time, the 401(k) plan of Adjoined (the “401(k) Termination”), and Adjoined shall have delivered a copy of such resolution to Parent.
(q) Parent shall be reasonably satisfied that the Company has satisfied its purchase price “earn-out” obligations under the Cima Agreement and the Sapphire Agreement.
(r) Adjoined shall have amended its January 1, 2006 License Agreement with Xxxx X. Xxxxxxxx, in form and substance reasonably satisfactory to Parent, in order to license his research algorithm, covering prior usage and future usage through January 2008, and prior to the Closing Date the Company shall have satisfied all payment obligations thereunder. SECTION VII- POST-CLOSING OBLIGATIONS
Appears in 1 contract
Conditions to Obligations of Parent. and Buyer to Effect the Merger. The obligations of Parent and Buyer to consummate effect the Mergers and the other transactions contemplated hereby shall be Merger are further subject to satisfaction or waiver at or prior to the fulfillment Effective Time of the following conditions unless waived by Parentconditions:
(a) The (i) the representations and warranties of the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or Agreement that are qualified by materiality qualifier) shall be true and correct in all respects on as of the date of the Agreement and as of the Closing Date with the same effect as though made on and as of the Closing Date Effective Time; (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(cii) and except where the failure of the representations and warranties of the Company in the aggregate to Agreement that are not qualified by materiality shall be true and correct in all material respects would not have a Material Adverse Effect on as of the Company.
date of this Agreement and as of the Effective Time; (biii) The the Company shall have performed in all material respects its all obligations and agreements and shall have complied in all material respects with its covenants required to be performed and complied with by it hereunder at or prior under this Agreement; (iv) the Xxxx Companies shall have transferred to the Effective Time.Company the FCC Licenses and Channel Leases pursuant to Section 5.17; (v) the directors of the Company's Subsidiaries shall have resigned and appointed nominees to fill their vacancies as provided in Section 5.18; and (vi) an officer of the Company shall have delivered to Parent and Buyer a certificate to the effect that each of the foregoing conditions is satisfied in all respects; provided, however, for purposes of this condition, as used in the representations and warranties of the Company contained in Article III of this Agreement, a Company Material Adverse Effect shall not include adverse developments in the Company's or its Subsidiaries' revenue or results of operations so long as the operating expenses and capital expenditures, in the aggregate, are not in excess of those identified in the Projections;
(b) The Company and its Subsidiaries shall have procured all necessary third party consents in connection with the consummation of the Merger and the transactions contemplated hereby;
(c) The Company There shall have furnished Parent with a certificate dated not be instituted, pending or threatened any action, investigation or proceeding by any Governmental Entity, or there shall not be instituted, pending or threatened any action or proceeding by any other person, domestic or foreign, before any Governmental Entity, which is reasonably likely to be determined adversely to Buyer, (A) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the Closing Date signed on consummation of the Merger, seeking to obtain material damages or imposing any material adverse conditions in connection therewith or otherwise, directly or indirectly, relating to the transactions contemplated by the Merger, (B) seeking to restrain, prohibit or delay the exercise of full rights of ownership or operation by Buyer or its behalf by its President affiliates of all or any Vice President portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Buyer or any of its affiliates, or to compel Buyer or any of its affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Buyer or any of its affiliates, (C) seeking to impose or confirm material limitations on the ability of Buyer or any of its affiliates effectively to exercise full rights of ownership of the shares of Company Common Stock, including, without limitation, the right to vote the shares of Company Common Stock acquired or owned by Buyer or any of its affiliates on all matters properly presented to the effect Company Stockholders, (D) seeking to require divestiture by Buyer or any of its affiliates of the shares of Company Common Stock, or (E) that the conditions set forth in Sections 6.3(a) and (b) otherwise would reasonably be expected to have been satisfied.a Company Material Adverse Effect; or
(d) Since the date of this Agreement, there There shall not have been and occurred any change, condition, event or development that has resulted in, or would reasonably be continuing expected to result in, a Company Material Adverse Effect; provided, that for purposes of this condition, a Company Material Adverse Effect on shall not include adverse developments in the Company's or its Subsidiaries' revenue or results of operations so long as the operating expenses and capital expenditures, in the aggregate, are not in excess of those identified in the Projections.
(e) Parent shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers and the other transactions contemplated hereby shall be Transactions is further subject to the fulfillment satisfaction or waiver by Parent of the following conditions unless waived by Parentconditions:
(a) The (i) the representations and warranties of the Company set forth Seller Parties contained in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifierSection 5.8(a)(ii) shall be true and correct in all respects, (ii) the representations and warranties of the Seller Parties contained in Article IV, Section 5.1, Section 5.3 (other than Section 5.3(a), the first sentence of Section 5.3(b) and Section 5.4) of this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects on and as of the Closing Date with the same effect as though if made on at and as of the Closing Date (except for to the extent any such representations representation and warranties made warranty by its terms addresses matters only as of a another specified datetime, the accuracy of in which case such representation and warranty will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all material respects as of such other time), (iii) the representations and warranties of Seller Parties contained in Section 5.3(a), the first sentence of Section 5.3(b), and Section 5.4 of this Agreement shall be true and correct (except for de minimis exceptions) as of the Closing Date as if made at and as of the Closing Date (except to the extent any such representation and warranty by its terms addresses matters only as of another specified time, in which case such representation and warranty will be true and correct (except for de minimis exceptions) as of such other time), and (iv) all of the other representations and warranties of the Seller Parties contained in this Agreement or in any certificate or other writing delivered by Sellers’ Representative pursuant hereto (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct as of the Closing Date as if made at and as of the Closing Date (except to the extent any such representation and warranty by its terms addresses matters only as of another specified time, in which case such representation and warranty will be true and correct as of such other time), except where the failure of such representations and warranties to be so true and correct would not have a an Company Material Adverse Effect on the Company.Effect;
(b) The Company all of the consents, authorizations, waivers, approvals, notices, expirations, filings and registrations set forth on Section 10.3(b) of the Seller Disclosure Letter shall have been obtained or made, as the case may be, in form and substance reasonably satisfactory to Parent, on or prior to, and shall be in full force and effect on, the Closing Date;
(c) each of the Seller Parties shall have performed and complied with in all material respects its all of the covenants and obligations and agreements and shall have complied in all material respects with its covenants required to be performed and complied with by it hereunder at under this Agreement on or prior to the Effective Time.Closing Date;
(cd) The from the date hereof through the Closing Date, there shall not have occurred a Company Material Adverse Effect;
(e) the Sellers’ Representative shall have furnished delivered to Parent with a certificate dated as of the Closing Date signed on its behalf Date, a certificate, dated as of such date, executed by its President or any Vice President an executive officer of the Sellers’ Representative to the effect that the conditions set forth in Sections 6.3(aclauses (a), (b), (c) and (bd) of this Section 10.3 have been satisfied.;
(df) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.
(e) Parent Sellers’ Representative shall have received an opinion from Dechert LLPdelivered to Parent duly signed resignations in form and substance reasonably satisfactory to Parent, dated as of the Closing Date, based upon certain factual representations of (i) all members of the board of directors of each Company of their positions as directors and (ii) of all the officers of the Company of their positions as officers; and
(g) the Sellers’ Representative shall have delivered to Parent as of the Closing Date, a certificate, dated as of such date, executed by an executive officer of Sellers’ Representative, certifying as to the aggregate outstanding Borrowed Indebtedness, and the Company reasonably requested by such counselaggregate cash and cash equivalents, of the Companies as of the Closing Date (without giving effect to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to ParentTransactions).
Appears in 1 contract
Samples: Share Purchase Agreement (Star Bulk Carriers Corp.)
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers and the other transactions contemplated hereby shall be by this Agreement are subject to the fulfillment fulfillment, or written waiver by Parent, of each of the following conditions unless waived by Parentconditions:
(a) The representations and warranties of Shareholders and the Company set forth contained in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) Agreement shall be true and correct in all material respects on at and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date (except for such representations Date; Shareholders and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.
(b) The Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants all agreements required by this Agreement to be performed and or complied with by it hereunder Shareholders and the Company at or prior to the Effective Time.Closing Date; and Parent shall have received a certificate, dated as of the Closing Date, signed by Shareholders and the President of the Company to the foregoing effects;
(b) No action or proceeding shall have been instituted or threatened for the purpose or with the probable or reasonably likely effect of enjoining or preventing the consummation of this Agreement or seeking damages on account thereof;
(c) The Company Parent shall have furnished Parent with a certificate received an opinion of Cribxx & McFaxxxxx, xxunsel for the Company and Shareholders, dated as of the Closing Date signed on its behalf by its President or any Vice President to Date, in the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.form attached hereto as Exhibit D;
(d) Since Prior to the date of this AgreementClosing, there shall not have occurred any material adverse change in the financial condition, business, prospects, properties, results of operations, cash flow or capital expenditures of the Company since December 31, 1999; and the business of the Company shall have been and be continuing a Material Adverse Effect on conducted only in the Company.ordinary course consistent with past practices;
(e) Parent shall have received an opinion from Dechert LLPthe minute books and stock transfer records contemplated by Section 4.1 hereof and the resignations contemplated by Section 4.10 hereof;
(f) All consents and approvals (if any) required in connection with the execution, delivery and performance of this Agreement shall have been obtained;
(g) All necessary action (corporate or otherwise) shall have been taken by Shareholders and the Company to authorize, approve and adopt this Agreement and the consummation and performance of the transactions contemplated hereby, and Parent shall have received a certificate, dated as of the Closing Date, based upon certain factual representations of Parent and the President of the Company reasonably requested by such counsel, to the effect that provided foregoing effect;
(h) Parent shall have received from each Shareholder or his or her duly appointed agent and attorney-in-fact the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) stock certificate or certificates representing all of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to Parent.Shares
Appears in 1 contract
Conditions to Obligations of Parent. and Sub to Effect the Merger. The obligations of Parent and Sub to consummate effect the Mergers and the other transactions contemplated hereby Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions unless waived by Parentadditional conditions:
(a) The Company and the Sellers shall have performed or complied with in all material respects their agreements and covenants contained in this Agreement required to be performed or complied with at or prior to the Closing Date;
(b) The representations and warranties of the Company set forth and the Sellers contained in Article III (which for purposes of this paragraph (a) shall be read Agreement qualified as though none of them contained any Material Adverse Effect or to materiality qualifier) shall be true and correct in all respects respects, and those not so qualified shall be true and correct in all material respects, in each case when made and on and as of the Closing Date with the same force and effect as though if made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined except as of the specified date), except for changes expressly contemplated or otherwise expressly permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct in all respects would not have a Material Adverse Effect on the Company.
(b) The Company shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to the Effective Time.this Agreement;
(c) The Company Parent shall have furnished Parent with received a certificate dated the Closing Date signed on its behalf of the Company by its President or any Vice President two executive officers of the Company and signed by each Stock Seller to the effect that the conditions set forth in Sections 6.3(aclauses (a) and (b) above have been satisfied.;
(d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on the Company.
(e) Parent shall have received an opinion from Dechert LLPof Cleary, Gottlieb, Steen & Hamilton, dated the Closing DateEffective Time, based upon certain factual representations of Parent and the Company in foxx xxd sxxxxxxxx reasonably requested by such counselsatisfactory to Parent, substantially to the effect that provided that, on the Tax Free Valuation Test is satisfiedbasis of the facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Effective Time, the Mergers Merger will be treated for federal income tax purposes as constitute a reorganization "reorganization" within the meaning of Section 368(a) of the Code, providedand the Company, however, that if Dechert LLP does not render Sub and Parent will each be a party to such reorganization within the meaning of Section 368(b) of the Code; and in rendering such opinion, this condition such counsel may require and rely upon representations and covenants including those contained in certificates of the Company, Parent and others;
(e) The Registration Rights Agreement shall nonetheless have been duly executed and delivered by each of the Sellers and shall be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to in full force and effect as of the Company renders such opinion to Parent.Effective Time;
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers and the other transactions contemplated hereby by this Agreement shall be subject to the fulfillment or Parent’s waiver, at or prior to the Closing, of each of the following conditions unless waived by Parentconditions:
(a) The representations and warranties of the Company set forth Buyers contained in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) ARTICLE IV shall be true and correct in all respects on and as of the Closing Date with the same effect as though made on at and as of the Closing Date such date (except for such those representations and warranties made that address matters only as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to shall be true and correct in all respects as of that specified date), except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect material adverse effect on Buyers’ ability to consummate the Companytransactions contemplated hereby.
(b) The Company Buyers shall have duly performed in all material respects its obligations and agreements and shall have complied in all material respects with its all agreements, covenants and conditions required by this Agreement to be performed and or complied with by it hereunder at or them prior to or on the Effective TimeClosing Date.
(c) The Company Parent shall have furnished Parent with received a certificate certificate, dated the Closing Date and signed on its behalf by its President or any Vice President to the effect a duly authorized officer of US Buyer, that each of the conditions set forth in Sections 6.3(aSection 7.03(a) and (bSection 7.03(b) have been satisfied.
(d) Since Parent shall have received a certificate of the date Secretary or an Assistant Secretary (or equivalent officer) of each of Buyers certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of each of Buyers authorizing the execution, delivery and performance of this AgreementAgreement and the consummation of the transactions contemplated hereby, there shall not have been and be continuing a Material Adverse Effect on that all such resolutions are in full force and effect and are all the Companyresolutions adopted in connection with the transactions contemplated hereby.
(e) Parent shall have received a certificate of the Secretary or an opinion from Dechert LLP, dated Assistant Secretary (or equivalent officer) of each of Buyers certifying the Closing Date, based upon certain factual representations names and signatures of the officers of Buyers authorized to sign this Agreement and the other documents to be delivered hereunder.
(f) Buyers shall have delivered to Parent and PFS cash in an amount equal to the Company reasonably requested Purchase Price by such counselwire transfer in immediately available funds, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as an account or accounts designated by Parent in a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed written notice to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to ParentBuyer.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations obligation of Parent to consummate the Mergers and the other transactions contemplated hereby shall be Share Exchange is subject to the fulfillment satisfaction (or waiver by Parent) of the following conditions unless waived by Parentconditions:
(a) The Company shall have obtained (and shall have provided copies thereof to Parent) all other waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 3.5 which are required on the part of the Company, except such waivers, permits, consents, approvals or other authorizations the failure of which to obtain or effect does not, individually or in the aggregate, have an Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(b) the representations and warranties of the Company set forth in Article III this Agreement (which for purposes of this paragraph (a) shall be when read without regard to any qualification as though none of them contained any to materiality or Company Material Adverse Effect or materiality qualifiercontained therein) shall be true and correct in all respects on as of the date of this Agreement and shall be true and correct as of the Closing Date with the same effect as though made on and as of the Closing Date (except for provided, however, that to the extent such representations representation and warranties made warranty expressly relates to an earlier date, such representation and warranty shall be true and correct as of a specified date, the accuracy of which will be determined as of the specified such earlier date), except for changes permitted by Section 5.3(c) and except where the failure of the any untrue or incorrect representations and warranties that, individually or in the aggregate to be true and correct in all respects would aggregate, do not have a an Company Material Adverse Effect or a material adverse effect on the Company.ability of the Parties to consummate the transactions contemplated by this Agreement;
(bc) each of the Company and the Stockholders shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing, except for such non-performance or non-compliance as does not have an Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(d) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(e) The Company shall have performed delivered to Parent a certificate (the “Company Certificate”) to the effect that each of the conditions specified in clause (b) (with respect to the Company’s due diligence of Parent) of Section 5.1 and clauses (a) through (d) (insofar as clause (d) relates to Legal Proceedings involving the Company) of this Section 5.2 is satisfied in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to the Effective Time.respects; and
(cf) The Company shall have furnished delivered to Parent with a certificate dated certificate, validly executed by an appropriate officer of the Closing Date signed on its behalf by its President or any Vice President Company, certifying as to (i) true, correct and complete copies of the effect that Company Constituent Instruments; (ii) the conditions set forth in Sections 6.3(a) and valid adoption of resolutions of the Board of Directors of the Company (b) have been satisfied.
(d) Since the date of whereby this Agreement, there shall not have been the Share Exchange and be continuing a Material Adverse Effect on the transactions contemplated hereunder were unanimously approved by the Board of Directors of the Company.
); and (eiii) Parent shall have received an opinion from Dechert LLP, dated incumbency and signatures of the Closing Date, based upon certain factual representations officers of Parent and the Company reasonably requested executing this Agreement or any other agreement contemplated by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to ParentAgreement.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent Parent’s obligation to consummate the Mergers and the other transactions contemplated hereby shall be is subject to satisfaction at or prior to the fulfillment Effective Time of the following conditions unless conditions, any of which may be waived in writing by Parent:
(a) The Registration Statement shall have been declared effective by the Securities and Exchange Commission in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceedings for that purpose shall have been instituted by the Securities and Exchange Commission or any state regulatory parties;
(b) This Agreement and the Merger shall have been authorized by the requisite vote of the stockholders of Parent in accordance with the DGCL and the Certificate of Incorporation and bylaws of Parent;
(c) The representations and warranties of the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) Articles 2 and 3 shall be true and correct in all respects on material respects, in each case at and as of the Closing Date with the same effect Effective Time, as though made on and as of the Closing Date (except Effective Time were substituted for the date hereof throughout such representations and warranties, except for representations and warranties that are made by their terms as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to shall be true and correct in all material respects would not have as of a Material Adverse Effect on the Company.specified date;
(bd) The Company Each of Cartesian and the Majority Shareholders shall have performed in all material respects its obligations and agreements and shall have complied in all material respects with its covenants to be performed and complied with by it hereunder at or prior to all of their respective covenants and agreements set forth in this Agreement through the Effective Time.;
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(de) Since the date of this Agreementthe Most Recent Balance Sheet, there shall not have been and be continuing no event having a Material Adverse Effect on the Company.shall have occurred;
(ef) All governmental filings, licenses, consents, authorizations, waivers and approvals that are required to be made or obtained for the consummation of the transactions contemplated by this Agreement and for the conduct of the business and operation thereof by the Surviving Corporation thereafter will have been duly made and obtained without conditions or requirements that are materially adverse to the Surviving Corporation;
(g) All consents, waivers and approvals by third parties that are required to be obtained for the consummation of the transactions contemplated by this Agreement will have been duly obtained without conditions or requirements that are materially adverse to Parent;
(h) No suit, action or proceeding will be pending or threatened before any court or quasi-judicial or administrative agency wherein any adverse judgment, decree, order or injunction would (i) prevent the consummation of the transactions contemplated by this Agreement, (ii) cause any of such transactions to be rescinded following consummation, (iii) materially and adversely affect the right of Parent or the Surviving Corporation to operate or control the business of Cartesian, or (iv) result in a Material Adverse Effect (and no such judgment, decree, order or injunction shall be in effect); and
(i) Parent shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is be satisfied, in its sole and absolute discretion, with its due diligence investigation of all intellectual property matters concerning Cartesian. If Parent fails to notify Cartesian in writing that it is not satisfied with the Mergers will be treated for federal income tax purposes as a reorganization within the meaning results of Section 368(a) of the Codesuch investigation on or before September 13, provided2001, however, that if Dechert LLP does not render such opinion, this condition then Parent shall nonetheless be deemed to be satisfied with respect such investigation.
(j) Xxxxx Xxxxxx shall have executed and delivered to Parent if an employment term sheet, reasonably satisfactory to Parent (which approval will not be unreasonably withheld.
(k) Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxshall have executed and delivered to Parent an Amendment to Employment Agreement, Professional Corporation, counsel reasonably satisfactory to the Company renders such opinion to ParentParent (which approval will not be unreasonably withheld.)
Appears in 1 contract
Samples: Agreement and Plan of Merger (Genomic Solutions Inc)
Conditions to Obligations of Parent. The obligations of Parent and Sub to consummate the Mergers and the other transactions contemplated hereby by this Agreement shall be subject to the fulfillment or Parent’s waiver, at or prior to the Closing, of each of the following conditions unless waived by Parentconditions:
(a) The Other than the representations and warranties of the Company set forth contained in Article III Section 3.01, Section 3.02, Section 3.10 and Section 3.21 (which for purposes collectively, the “Company Fundamental Reps”), and the representations and warranties of the Equityholders contained in Section 4.01 and Section 4.02 (the “Equityholder Fundamental Reps” and, together with the Company Fundamental Reps, the “Fundamental Reps”), the representations and warranties of the Company and the Equityholders contained in this paragraph (a) Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be read as though none true and correct in all respects (in the case of them contained any representation or warranty qualified by materiality or Material Adverse Effect Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality qualifieror Material Adverse Effect) on and as of the date hereof (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The Fundamental Reps shall be true and correct in all respects on and as of the Closing Date with the same effect as though made on and as of the Closing Date date hereof (except for such those representations and warranties made that address matters only as of a specified date, the accuracy of which will shall be determined as of the that specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be true and correct date in all respects would not have a Material Adverse Effect on the Companyrespects).
(b) The Equityholders and the Company shall have duly performed in all material respects its obligations and agreements and shall have complied in all material respects with its all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed and or complied with by it hereunder prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, the Equityholders and the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Parent, Sub, the Equityholders or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) Parent and its Representatives shall have completed their due diligence procedures with respect to the Company to the Parent’s satisfaction and there shall be no outstanding due diligence issues that have not been resolved to Parent’s satisfaction.
(e) The board of directors of the Parent and the manager and members of the Company, respectively, shall have approved this Agreement, the Transaction Agreements and the transactions contemplated hereby and thereby.
(f) No Material Adverse Effect shall have occurred.
(g) All declarations or filings with, or notices to, any Governmental Authority referred to in Section 3.04 shall have been made, and all Required Consents and all consents, approvals, Permits and Governmental Orders from or with respect to any Governmental Authority referred to in Section 3.04 shall have been received, and executed counterparts thereof (as applicable) shall have been delivered to Parent at or prior to the Effective TimeClosing.
(ch) The Company Transaction Documents (other than this Agreement) and the Continuing Employee PIIAs shall have furnished been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Parent.
(i) Parent with shall have received a certificate certificate, dated the Closing Date and signed on its behalf by its President or any Vice President to a duly authorized officer of the effect Company, that each of the conditions set forth in Sections 6.3(aSection 8.02(a) and (bSection 8.02(b) have been satisfied.
(dj) Since Parent shall have received a certificate of the date Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(k) Parent shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying the names and signatures of the officers of the Company authorized to sign this Agreement, there the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(l) Parent shall have received written resignations, effective as of the Closing Date, of each of the directors and officers of the Company and its Subsidiaries.
(m) The Company shall have delivered to Parent a good standing certificate (or its equivalent) for each of the Company and its Subsidiaries from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized.
(n) The Company shall have delivered to Parent the Estimated Closing Statement at least three (3) Business Days prior to the Closing.
(o) The Company shall have delivered to Parent the Consideration Spreadsheet and a closing flow of funds at least three (3) Business Days prior to the Closing.
(p) The Company and each Equityholder shall have delivered to Parent a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that the Company and each Equityholder is not a foreign person within the meaning of Section 1445 of the Code.
(q) Each Equityholder shall have delivered, or caused to be delivered, to Parent (i) certificates evidencing the Company Interests, free and clear of Encumbrances, duly endorsed in blank or accompanied by membership interest powers or other instruments of transfer duly executed in blank and with all required membership interest transfer tax stamps affixed; and (ii) no later than two (2) Business Days prior to the Closing Date, bank account and wire transfer information for the payment of the Closing Cash Payment to such Equityholder.
(r) The Company shall have provided reasonable evidence to Parent that the Delinquent Entity has been dissolved, its name has been changed to something other than “Craft Canning LLC” or any variant thereof, and its assets have been and be continuing a Material Adverse Effect on distributed to the Company.
(es) Parent Each of the Company and the Equityholders shall have received an opinion from Dechert LLP, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by such counsel, to the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect delivered to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel such other documents or instruments as Parent reasonably requests and are reasonably necessary to consummate the Company renders such opinion to Parenttransactions contemplated by this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate the Mergers Merger and the other transactions contemplated hereby shall be subject to the fulfillment of the following conditions unless waived by Parent:
(a) The representations and warranties of the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) shall be true and correct in all respects on and as of the Closing Date with the same effect as though made on and as of the Closing Date (except for such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties for any such inaccuracies which, individually or in the aggregate to be true and correct in all respects aggregate, would not have a Material Adverse Effect on the CompanyCompany or a material adverse effect on the ability of the Company to consummate the transactions contemplated by this Agreement (it being agreed that any materiality qualifications in particular representations and warranties shall be disregarded in determining whether any such inaccuracies would have a Material Adverse Effect for purposes of this Section 6.3(a)).
(b) The Company shall have performed in all material respects its obligations each obligation and agreements agreement and shall have complied in all material respects with its covenants each covenant to be performed and complied with by it hereunder at or prior to the Effective Time.
(c) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its Chairman, President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this Agreement, there shall not have been and be continuing a occurred any Material Adverse Effect on the Company.
(e) Parent The aggregate number of shares of Company Common Stock which dissents from the transactions contemplated by this Agreement shall have received an opinion from Dechert LLP, dated not exceed 5% of the outstanding shares of Company Common Stock on the Closing Date.
(f) There shall not be pending any Action by any Governmental Authority (i) seeking to prohibit or limit the ownership or operation by Parent, based upon certain factual representations the Surviving Corporation or any of their respective subsidiaries of, or to compel Parent, the Surviving Corporation or any of their respective subsidiaries to dispose of or hold separate, any material portion of the business or assets of Parent, the Company or any of their respective subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) seeking to prohibit Parent or any subsidiary of Parent and from effectively controlling in any material respect the business or operations of the Company reasonably requested by such counsel, to or the effect that provided the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) subsidiaries of the Code, provided, however, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company renders such opinion to ParentCompany.
Appears in 1 contract
Samples: Merger Agreement (Onesource Information Services Inc)
Conditions to Obligations of Parent. and Buyer to Effect the Merger. The obligations of the Parent to consummate the Mergers and the other transactions contemplated hereby shall be Buyer to effect the Merger are further subject to satisfaction or waiver at or prior to the fulfillment Effective Time of the following conditions unless waived by Parentconditions:
(ai) The representations and warranties of the Company set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained any Agreement that are qualified by Company Material Adverse Effect or materiality qualifiershall be true and correct as so qualified in all respects as of the date of this Agreement and as of the Effective Time, and (ii) the representations and warranties of the Company in this Agreement that are not qualified by Company Material Adverse Effect shall be true and correct in all respects on as of the date of this Agreement and as of the Closing Date with Effective Time, except in the same effect as though made on and as case of this clause (ii), where the Closing Date (except for failure of such representations and warranties made as of a specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate to be so true and correct in all respects would not have have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(b) The Company shall have performed in all material respects its obligations all covenants and agreements and shall have complied in all material respects with its covenants required to be performed and complied with by it hereunder under this Agreement at or prior to the Effective TimeClosing.
(c) The Company shall have furnished furnish the Parent with a certificate dated the Closing Date signed on of its behalf by its President or any Vice President appropriate officers as to the effect that compliance with the conditions set forth in Sections 6.3(a7.2(a) and (b) have been satisfied).
(d) Since the date of this Agreement, there The Parent shall not have been and be continuing a Material Adverse Effect on the Companyreceived an Affiliate Letter from each Affiliate in accordance with Section 6.16.
(e) Parent No suit, investigation, action or other proceeding shall have received an opinion from Dechert LLPbe overtly threatened or pending against the Parent, dated the Closing Date, based upon certain factual representations of Parent and the Company reasonably requested by or any Subsidiary before any Governmental Entity which (i) would result in the restraint or prohibition of any such counselparty, to or the effect that provided obtaining of damages or other relief from any such party, in connection with this Agreement or the Tax Free Valuation Test is satisfied, the Mergers will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) consummation of the Codetransactions contemplated hereby or thereby which would in any such case, providedindividually or in the aggregate, howeverhave a Parent Material Adverse Effect or a Company Material Adverse Effect, that if Dechert LLP does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to or (ii) any orders restricting the Company renders such opinion to Parentor any Subsidiary or the -52- 57 Parent from conducting its business as now being conducted which, individually or in the aggregate, would have a Company Material Adverse Effect or a Parent Material Adverse Effect.
(f) There shall not have occurred any change, condition, event or development that has resulted in a Company Material Adverse Effect.
Appears in 1 contract
Conditions to Obligations of Parent. The obligations of Parent to consummate effect the Mergers and the other transactions contemplated hereby Merger shall be subject to the fulfillment satisfaction on or prior to the Closing Date of each of the following conditions unless waived by Parent:
(a) The (i) the representations and warranties of the Company set forth in Article III (this Agreement which for purposes of this paragraph (a) shall be read as though none of them contained any are not qualified by the phrase "Material Adverse Effect on Company" or otherwise qualified by materiality qualifiershall have been true and correct in all respects at and as of the date of this Agreement and shall be true and correct in all material respects at and as of the Closing Date as though made at and as of the Closing Date, except to the extent such representations and warranties speak as of a specified date (which representations and warranties shall be true and correct as of such date) and except to the extent contemplated by this Agreement, (ii) the representations and warranties of Company set forth in this Agreement which are not qualified by the phrase "Material Adverse Effect on Company" but are otherwise qualified by materiality shall be true and correct in all respects on at and as of the date of this Agreement and at and as of the Closing Date with the same effect as though made at and as of the Closing Date, (iii) the representations and warranties of Company set forth in this Agreement which are qualified by the phrase "Material Adverse Effect on Company" shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, provided, however, that for purposes of determining the satisfaction of the condition contained in this clause (except for iii) such representations and warranties made as of a specified date, the accuracy of which will shall be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in the aggregate deemed to be true and correct in all respects unless the failure or failures of such representations and warranties to be so true and correct (without giving effect to any exception or "Material Adverse Effect on Company" qualifier), individually or in the aggregate, results or would not have reasonably be expected to result in a Material Adverse Effect on Company, and (iv) the Companyrepresentations and warranties of the Identified Shareholders shall have been true and correct in all respects at and as of the date of this Agreement and shall be true and correct at and as of the Closing Date as if made at and as of the Closing Date.
(b) The Company shall have performed in all material respects its obligations all covenants and agreements and shall have complied in all material respects with its covenants required to be performed and complied with by it hereunder under this Agreement at or prior to the Effective TimeClosing Date.
(c) The Company shall have furnished furnish Parent with a certificate dated the Closing Date signed on of (i) its behalf by its President or any Vice President appropriate officers as to the effect that compliance with the conditions set forth in Sections 6.3(a6.3(a)(i), (ii) and (biii) have been satisfiedand Section 6.3(b) and (ii) the Identified Shareholders as to compliance with the conditions set forth in Section 6.3(a)(iv).
(d) Since Parent shall have received from Deloitte & Touche LLP (A) letters dated (i) the date of this Agreementthe Proxy Statement and (ii) the Closing Date, there shall not have been with respect to certain financial information regarding Company included in the Proxy Statement, in each case in form and be continuing a Material Adverse Effect on substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with proxy statements similar to the CompanyProxy Statement and (B) an agreed upon procedures report dated the Closing Date with respect to the unaudited consolidated balance sheet and related unaudited consolidated results of operations, shareholders' equity and cash flow of Company for the quarter ended December 31, 1998 and each month ended during the period between January 1, 1999 and the Closing Date (the "Bring-Down Financial Statements").
(e) Parent shall have received an opinion Affiliates Letter from Dechert LLPeach possible "affiliate" described in Section 5.16.
(f) Parent shall have received an opinion, dated the Closing Date, based upon certain factual representations of O'Melveny & Xxxxx LLP, counsel to Company, in the form previously agreed to by Parent and Company.
(g) No suit, investigation, action or other proceeding (i) shall be pending or overtly threatened against Parent, Company or any of the Company Subsidiaries by any governmental agency which seeks to restrain or prohibit the consummation of the Merger, (ii) shall be pending against Parent, Company or any of the Company Subsidiaries that seeks damages or other relief in connection with this Agreement or the consummation of the transactions contemplated hereby which would, if successful, result in a Material Adverse Effect on Parent, (iii) shall be pending against Parent, Company or any of the Company Subsidiaries that seeks damages or other relief which would reasonably be expected to exceed, individually or in the aggregate, $1 million, if pending against Parent, or result, individually or in the aggregate, in a Material Adverse Effect on Company if pending against Company or any Company Subsidiary, or (iv) shall be pending against Parent, Company or any of the Company Subsidiaries that would reasonably be expected to result in any orders restricting Company or any Company Subsidiary from conducting its business as now being conducted which, individually or in the aggregate, would have a Material Adverse Effect on Company.
(h) Each of the directors of Company requested by Parent to do so shall have tendered to Parent resignation letters on or prior to the Closing Date, such resignations to be effective at the Effective Time.
(i) Company shall have (i) at least $21 million in cash and cash equivalents, including cash and cash equivalents classified as restricted cash on its balance sheet and such amount of restricted cash equals or exceeds the amount of restricted cash required to be reserved by Company and the Company Subsidiaries under the Securitization Agreements and (ii) retained all cash proceeds obtained in connection with the exercise of Common Stock Options and shall deliver to Parent a certificate to such effect signed by Company's Chief Financial Officer.
(j) [intentionally omitted].
(k) Between the date of this Agreement and the Closing Date, no event or events shall have occurred which constitutes or constitute or would reasonably requested by such counselbe expected, individually or in the aggregate to result in, a Material Adverse Change. For purposes of this Section 6.3(k), a "Material Adverse Change" shall mean the existence of any of the following conditions, the existence of any of which conditions is attributable to facts, circumstances or events specific to or relating to Company and/or the Company Subsidiaries and their business and operations and which condition is not primarily the result of facts, circumstances or events affecting the commercial equipment leasing industry generally (a "Commercial Equipment Leasing Industry Event"), (i) Company shall have originated, in the ordinary course of business consistent with past practices, leases for the year ended December 31, 1998 having an aggregate value of less than $215,000,000, (ii) the leases and loans in Company's and the Company Subsidiaries' portfolio (whether owned directly or conveyed under the Securitization Facilities) (the "Leases and Loans"), the scheduled payments in respect of which are 30 days or more past due at the end of the calendar month immediately preceding the Closing Date, exceed in aggregate dollar value more than 10% of the aggregate dollar value of all outstanding Leases and Loans as of that date, or (iii) at the end of the calendar month immediately preceding the Closing Date (the "calculation date") the ratio of the gross unpaid contract balance of Lease and Loan account, the scheduled payments in respect of which are 180 days past due, to the effect that provided gross unpaid contract balance of all Lease and Loan accounts exceeds the Tax Free Valuation Test is satisfiedsame ratio computed as of September 30, 1998, by (x) 100 basis points, in the event the Closing Date occurs on or prior to March 31, 1999 and (y) 125 basis points, in the event the Closing Date occurs on or after April 1, 1999. For purposes of this Section 6.3 (k), the Mergers ratio at September 30, 1998 and the ratio at the calculation date will be treated for federal income tax purposes as a reorganization within computed without giving effect to (a) any Lease and Loan account written off during the meaning of Section 368(a) three-month period immediately preceding September 30, 1998 and during the three-month period immediately preceding the end of the Codemonth immediately preceding the Closing Date, providedrespectively, howeverand (b) any extension of payments, that if Dechert LLP does not render such opiniongrace periods, this condition shall nonetheless be deemed rollovers, Lease and Loan amendments or modifications or similar practices granted to be satisfied or with respect to Parent if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxany Lease or Loan account since September 30, Professional Corporation, counsel 1998 unless they are consistent with past practices and in the ordinary course of business. Notwithstanding anything to the contrary set forth herein, any Lease and Loan account write-off made between September 30, 1998 and the Closing Date shall be made in the ordinary course of business consistent with the Company's past practices. In making a determination as to whether a Material Adverse Change is primarily the result of facts, circumstances or events which constitute a Commercial Equipment Leasing Industry Event, the parties shall compare the results of operations and portfolio performance of Company renders such opinion and the Company Subsidiaries to Parentthe results of operations and portfolio performances of other companies in the commercial equipment leasing industry.
Appears in 1 contract
