Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law: (a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers, (b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Closing Date of Xxxxx, Xxxx & Xxxxxxxx, P.C. , which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of the Company and public officials as are reasonable and customary to opinions delivered in the type of business transactions covered by this Agreement, addressing the following: (i) Due organization, valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications, (ii) Requisite corporate power and authority and all, to such counsel's knowledge, necessary Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted, (iii) In respect of the Company and each Subsidiary, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of the date of this Agreement and the Effective Time and number of Option Securities and amount of Convertible Securities outstanding as of such dates, (iv) Due authorization, valid issuance, full payment and non- accessibility of outstanding shares of capital stock of the Company and each Subsidiary and (upon issuance on the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence of preemptive rights with respect thereto, (v) To the knowledge of counsel, (A) there are not Contractual Obligations to repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any Subsidiary, or any Option Securities and Convertible Securities, (B) the Merger will not cause an acceleration of the exercise or vesting schedule of any Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule), (vi) Corporate power and authority of the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, to perform its obligations thereunder and to consummate the Merger, (vii) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger, (viii) Due authorization and valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate the Merger and the Transactions except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification and noncompetition provisions included herein, (ix) The execution and delivery of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger by the Company do not, and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Transactions by the Company will not, (i) conflict with or violate the Organizational Documents of the Company or any Subsidiary, (ii) conflict with or violate any Applicable Law, or (iii) to counsel's knowledge, constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any Material Agreement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset of the Company or any Subsidiary is bound or affected, (x) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by the Company, (xi) Required filings with the Secretary of State of Georgia have been made, (xii) To the knowledge of counsel, absence of pending or threatened material Legal Action, (xiii) Nonapplicability of Georgia takeover laws, and (xiv) such other customary matters concerning the Stockholders in connection with the Financing as may reasonably be requested by the Underwriter or its counsel.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Call Points Inc)
Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers,
(b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Closing Date of XxxxxXxxxxx Westheimer, Xxxx & XxxxxxxxPC, P.C. Houston, which may contain limitations Texas, in the form attached as Exhibit 7.2(b). --------------
(c) The representations, warranties, covenants and qualifications as to scope and law and rely on certifications as to facts of officers agreements of the Company contained in this Agreement or otherwise made in writing by it or on its behalf pursuant to this Agreement or otherwise made in connection with the Merger and public officials the Transactions shall be true and correct in all material respects at and as are reasonable of the Financing Closing Date with the same force and customary effect as though made on and as of such date except those which speak as of a certain date which shall continue to opinions be true and correct in all material respects as of such date and the Financing Closing Date, each and all of the agreements and conditions to be performed or satisfied by the Company under this Agreement at or prior to the Financing Closing Date shall have been duly performed or satisfied in all material respects, and the Company shall have furnished VIALOG with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as VIALOG shall have reasonably requested,
(d) The Principal Stockholder shall have executed and delivered to VIALOG a noncompetition agreement, substantially in the type form attached as Exhibit 7.2(d), --------------
(e) No Legal Action or other Claim shall be pending or threatened at any time prior to or on the Financing Closing Date before or by any Authority or by any other Person seeking to restrain or prohibit, or damages or other relief in connection with, the execution and delivery of business transactions covered this Agreement or the consummation of the Merger and the Transactions or which might in the reasonable judgment of VIALOG have any Adverse Effect on the Company or the Company and its Subsidiaries taken as a whole or, assuming consummation of the Merger and the Participating Mergers, VIALOG and its Subsidiaries taken as a whole,
(f) The filing and waiting period requirements (if applicable) under the HSR Act relating to the consummation of the Merger and the Participating Mergers shall have been complied with,
(g) All actions taken by the Stockholders to approve and adopt this Agreement, addressing the following:Merger and the Transactions shall comply in all respects with and shall be legal, valid, binding, enforceable and effective under the Law of the jurisdiction of incorporation of the Company, its Organizational Documents and all Material Agreements to which it or any of its Subsidiaries is a party or by which it or any of them or any of its or any of their property or assets is bound,
(h) The Company shall have obtained consents to the assignment and continuation of all Material Agreements which, in the reasonable judgment of VIALOG or its counsel, require such consents, including appropriate binders or consents as to policies of insurance to be assigned to VIALOG or the Surviving Corporation under this Agreement. The Company shall have obtained satisfaction and discharge of all Liens set forth in Section 3.15(b) of the Disclosure Letter, and shall have obtained, on terms and conditions reasonably satisfactory to VIALOG, all Governmental Authorizations and Private Authorizations, and all modifications of Contractual Obligations relating to Indebtedness, which VIALOG deems, reasonably necessary or desirable in order to own and operate and conduct the business of the Surviving Corporation, substantially on the basis heretofore owned, operated and conducted by the Company and proposed to be owned, operated and conducted by VIALOG,
(i) Due organization, valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications,
(ii) Requisite corporate power and authority and all, to such counsel's knowledge, necessary Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted,
(iii) In respect of the Company and each Subsidiary, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of Between the date of this Agreement and the Effective Time Time, there shall not have occurred and number of Option Securities be continuing any Adverse Change affecting the Company or the Company and amount of Convertible Securities outstanding its Subsidiaries taken as of such datesa whole from the condition thereof (financial and other) reflected in the Financial Statements or in the audited financial statements prepared by the Accountants as contemplated by Section 6.4 or in the most recent financial statements set forth in the Financing Document,
(ivj) Due authorizationVIALOG shall have received from its Accountants, valid issuancea certificate or letter, full payment dated the Financing Closing Date, to the effect that, on the basis of a limited review in accordance with the standards for such reviews promulgated by the American Institute of Certified Public Accountants as outlined in Statement of Standards of Accounting and non- accessibility Review Services No. 1, they have no reason to believe that the unaudited financial statements set forth in the Financing Document were not prepared in accordance with GAAP and practices consistent with those followed in the preparation of outstanding shares the audited financial statements audited by the Accountants as contemplated by Section 6.4, or that any material modifications of capital stock such unaudited financial statements are required for a fair presentation of the financial position or results of operations or changes in financial position of the Company or that during the period from the last day covered by the most recent financial statements set forth in the Financing Document prepared by the Accountants as contemplated by Section 6.1(a) to a date not more than five (5) days prior to the Financing Closing Date, there has been any Adverse Change in the financial position or results of the operations of the Company or the Company and its Subsidiaries taken as a whole which is not described in the Financing Document,
(k) No Law shall have been enacted or made by or on behalf of any Authority nor shall any legislation have been introduced and favorably reported for passage to either House of Congress by any committee, nor shall any Legal Action by any Authority have been commenced or threatened, nor shall any decision, order or other action of any Authority have been rendered or taken, which in VIALOG's reasonable judgment, could have any Adverse Effect on the Company or the Company and its Subsidiaries taken as a whole, or could restrain, prevent or change the Merger or the Transactions or Adversely Affect the ability of the Principal Stockholder to perform its obligations under this Agreement, or Adversely Affect the ability of VIALOG to continue to own, operate and conduct the business of the Surviving Corporation, substantially on the basis heretofore owned, operated and conducted by the Company and as proposed to be owned, operated and conducted by the Surviving Corporation,
(l) VIALOG shall have received copies of any environmental audits the Company has received in respect of all real property owned or leased by the Company or any of its Subsidiaries. VIALOG, in its sole discretion and at its sole expense, may engage an independent environmental engineer to perform such audits and the results thereof shall not be materially inconsistent with the representations and warranties set forth in Section 3.23,
(m) Each of the directors of the Company and each Subsidiary of its Subsidiaries and (upon issuance on each trustee under each Plan shall have submitted his or her unqualified written resignation, dated as of the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence of preemptive rights with respect theretoFinancing Closing Date,
(vn) To The Principal Stockholder shall have delivered to VIALOG an agreement, substantially in the knowledge form attached as Exhibit 7.2(n), dated the Financing -------------- Closing Date, releasing the Company and its Subsidiaries from any and all Claims against them (other than Claims arising from such Principal Stockholder having acted as a director or officer of counsel, (A) there are not Contractual Obligations to repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any Subsidiary, or any Option Securities and Convertible Securities, (B) the Merger will not cause an acceleration of the exercise or vesting schedule of any Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or such Subsidiary as contemplated by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule6.7),
(vio) Corporate power and authority of VIALOG shall have received a letter from its Accountants to the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, to perform its obligations thereunder and to consummate the Merger,
(vii) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger,
(viii) Due authorization and valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate effect that the Merger and the Transactions except (A) qualify as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject a cash reverse merger pursuant to the effect of general principles of equity Code and (B) that no opinion need be expressed as will not result in any taxable income or gain or deductible loss to the enforceability Company, VIALOG or VIALOG Merger Subsidiary.
(p) The Company shall not have suffered any material damage, destruction or loss (whether or not covered by insurance) or any material acquisition or taking of indemnification and noncompetition provisions included hereinproperty by any Authority, nor shall it have experienced any material work stoppage,
(ixq) Except for such leases and other Contractual Obligations as are set forth on Section 7.2(q) of the Disclosure Letter and are executed, delivered and effective as of the Effective Time, all Contractual Obligations set forth in Section 3.9 of the Disclosure Letter shall have been satisfied and discharged as of the Financing Closing Date,
(r) The execution representations, warranties, covenants and delivery agreements of the Principal Stockholder contained in this Agreement or otherwise made in writing by or on behalf of the Principal Stockholder pursuant to this Agreement or otherwise made in connection with the Merger and the Transactions shall be true and correct in all material respects at and as of the Financing Closing Date with the same force and effect as though made on and as of such date except those which speak as of a certain date which shall continue to be true and correct in all material respects as of such date and on the Financing Closing Date. Each and all Collateral Documents executed or required of the agreements and conditions to be executed pursuant thereto performed or to consummate the Merger satisfied by the Company do notPrincipal Stockholder under this Agreement at or prior to the Financing Closing Date, including without limitation the provisions set forth in Section 6.19, shall have been duly performed or satisfied in all material respects, and the Principal Stockholder shall have furnished VIALOG with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as VIALOG or its counsel shall have reasonably requested,
(s) Xxxxx Xxxxxx shall have executed and delivered to VIALOG an employment and noncompetition agreement, substantially in the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation form attached as Exhibit 7.2(s), --------------
(t) The individuals listed in Section 7.2(t) of the Transactions by Disclosure Letter, shall have executed and delivered to VIALOG an Employment Arrangement substantially in the form attached as Exhibit 7.2(t), and
(u) The Company will not, shall have entered into (i) conflict a written sublease with or violate Telesystems for the Organizational Documents of space occupied by the Company or any SubsidiaryCompany, (ii) conflict written agreements with or violate any Applicable LawTelesystems for the use of long distance, or local access, security system and copier, and (iii) to counsel's knowledge, constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation case of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any Material Agreement (i) and (ii) above in each case reasonably acceptable to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset of the Company or any Subsidiary is bound or affected,
(x) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by the Company,
(xi) Required filings with the Secretary of State of Georgia have been made,
(xii) To the knowledge of counsel, absence of pending or threatened material Legal Action,
(xiii) Nonapplicability of Georgia takeover laws, and
(xiv) such other customary matters concerning the Stockholders in connection with the Financing as may reasonably be requested by the Underwriter or its counselVIALOG.
Appears in 1 contract
Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers,
(b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Closing Date of XxxxxBest Best & Xxxxxxx LLP, Xxxx & XxxxxxxxCalifornia in the form attached as Exhibit 7.2(b). --------------
(c) The representations, P.C. warranties, which may contain limitations covenants and qualifications as to scope and law and rely on certifications as to facts of officers agreements of the Company contained in this Agreement or otherwise made in writing by it or on its behalf pursuant to this Agreement or otherwise made in connection with the Merger and public officials the Transactions shall be true and correct in all material respects at and as are reasonable of the Financing Closing Date with the same force and customary effect as though made on and as of such date except those which speak as of a certain date which shall continue to opinions be true and correct in all material respects as of such date and the Financing Closing Date, each and all of the agreements and conditions to be performed or satisfied by the Company under this Agreement at or prior to the Financing Closing Date shall have been duly performed or satisfied in all material respects, and the Company shall have furnished VIALOG with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as VIALOG shall have reasonably requested,
(d) Xxxx Xxxxxxxx shall have executed and delivered to VIALOG a noncompetition agreement, substantially in the type form attached as Exhibit 7.2(d),
(e) No Legal Action or other Claim shall be pending or threatened at any time prior to or on the Financing Closing Date before or by any Authority or by any other Person seeking to restrain or prohibit, or damages or other relief in connection with, the execution and delivery of business transactions covered this Agreement or the consummation of the Merger and the Transactions or which is in an amount in excess of $10,000.00 and which might in the reasonable good faith judgment of VIALOG have any Adverse Effect on the Company or the Company and its Subsidiaries taken as a whole or, assuming consummation of the Merger and the Participating Mergers, VIALOG and its Subsidiaries taken as a whole,
(f) The filing and waiting period requirements (if applicable) under the HSR Act relating to the consummation of the Merger and the Participating Mergers shall have been complied with,
(g) All actions taken by the Stockholders to approve and adopt this Agreement, addressing the following:Merger and the Transactions shall comply in all respects with and shall be legal, valid, binding, enforceable and effective under the Law of the jurisdiction of incorporation of the Company, its Organizational Documents and all Material Agreements to which it or any of its Subsidiaries is a party or by which it or any of them or any of its or any of their property or assets is bound,
(h) The Company shall have obtained consents to the assignment and continuation of all Material Agreements which, in the reasonable judgment of VIALOG or its counsel, require such consents, including appropriate binders or consents as to policies of insurance to be assigned to VIALOG or the Surviving Corporation under this Agreement. The Company shall have obtained satisfaction of and taken all actions reasonably necessary to discharge all Liens set forth in Section 3.15(b) of the Disclosure Letter, it being understood that if a lienholder fails to release its lien after receiving satisfaction of the same that such failure will not be grounds for terminating the Transaction. The Company shall have obtained, on terms and conditions reasonably satisfactory to VIALOG, all Governmental Authorizations and Private Authorizations, and all modifications of Contractual Obligations relating to Indebtedness, which VIALOG deems, reasonably necessary or desirable in order to own and operate and conduct the business of the Surviving Corporation, substantially on the basis heretofore owned, operated and conducted by the Company and proposed to be owned, operated and conducted by VIALOG,
(i) Due organization, valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications,
(ii) Requisite corporate power and authority and all, to such counsel's knowledge, necessary Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted,
(iii) In respect of the Company and each Subsidiary, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of Between the date of this Agreement and the Effective Time Time, there shall not have occurred and number of Option Securities be continuing any Adverse Change affecting the Company or the Company and amount of Convertible Securities outstanding its Subsidiaries taken as of such datesa whole from the condition thereof (financial and other) reflected in the Financial Statements or in the audited financial statements prepared by the Accountants as contemplated by Section 6.4 or in the most recent financial statements set forth in the Financing Document,
(ivj) Due authorizationVIALOG shall have received from its Accountants, valid issuancea certificate or letter, full payment dated the Financing Closing Date, to the effect that, on the basis of a limited review in accordance with the standards for such reviews promulgated by the American Institute of Certified Public Accountants as outlined in Statement of Standards of Accounting and non- accessibility Review Services No. 1, they have no reason to believe that the unaudited financial statements set forth in the Financing Document were not prepared in accordance with GAAP and practices consistent with those followed in the preparation of outstanding shares the audited financial statements audited by the Accountants as contemplated by Section 6.4, or that any material modifications of capital stock such unaudited financial statements are required for a fair presentation of the financial position or results of operations or changes in financial position of the Company or that during the period from the last day covered by the most recent financial statements set forth in the Financing Document prepared by the Accountants as contemplated by Section 6.1(a) to a date not more than five (5) days prior to the Financing Closing Date, there has been any Adverse Change in the financial position or results of the operations of the Company or the Company and its Subsidiaries taken as a whole which is not described in the Financing Document,
(k) No Law shall have been enacted or made by or on behalf of any Authority nor shall any legislation have been introduced and favorably reported for passage to either House of Congress by any committee, nor shall any Legal Action by any Authority have been commenced or threatened, nor shall any decision, order or other action of any Authority have been rendered or taken, which in VIALOG's reasonable judgment, could have any Adverse Effect on the Company or the Company and its Subsidiaries taken as a whole, or could restrain, prevent or change the Merger or the Transactions or Adversely Affect the ability of the Principal Stockholders to perform its obligations under this Agreement, or Adversely Affect the ability of VIALOG to continue to own, operate and conduct the business of the Surviving Corporation, substantially on the basis heretofore owned, operated and conducted by the Company and as proposed to be owned, operated and conducted by the Surviving Corporation,
(l) VIALOG shall have received copies of any environmental audits the Company has received in respect of all real property owned or leased by the Company or any of its Subsidiaries. VIALOG, in its sole discretion and at its sole expense, may engage an independent environmental engineer to perform such audits and the results thereof shall not be materially inconsistent with the representations and warranties set forth in Section 3.23,
(m) Each of the directors of the Company and each Subsidiary of its Subsidiaries and (upon issuance on each trustee under each Plan shall have submitted his or her unqualified written resignation, dated as of the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence of preemptive rights with respect theretoFinancing Closing Date,
(vn) To the knowledge of counsel, (A) there are not Contractual Obligations to repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any Subsidiary, or any Option Securities and Convertible Securities, (B) the Merger will not cause an acceleration Each of the exercise Principal Stockholders shall have delivered to VIALOG an agreement, substantially in the form attached as Exhibit 7.2(n), dated the --------------- Financing Closing Date, releasing the Company and its Subsidiaries from any and all Claims against them (other than Claims arising from such Principal Stockholder having acted as a director or vesting schedule officer of any Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or such Subsidiary as contemplated by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule6.7),
(vio) Corporate power and authority of VIALOG shall have received a letter from its Accountants to the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, to perform its obligations thereunder and to consummate the Merger,
(vii) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger,
(viii) Due authorization and valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate effect that the Merger and the Transactions except (A) qualify as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject a cash reverse merger pursuant to the effect of general principles of equity Code and (B) that no opinion need be expressed as will not result in any taxable income or gain or deductible loss to the enforceability Company, VIALOG or VIALOG Merger Subsidiary.
(p) The Company shall not have suffered any material damage, destruction or loss (whether or not covered by insurance) or any material acquisition or taking of indemnification and noncompetition provisions included hereinproperty by any Authority, nor shall it have experienced any material work stoppage,
(ixq) Except for such leases and other Contractual Obligations as are set forth on Section 7.2(q) of the Disclosure Letter and are executed, delivered and effective as of the Effective Time, all Contractual Obligations set forth in Section 3.9 of the Disclosure Letter shall have been satisfied and discharged as of the Financing Closing Date,
(r) The execution representations, warranties, covenants and delivery agreements of the Principal Stockholders contained in this Agreement or otherwise made in writing by or on behalf of the Principal Stockholders pursuant to this Agreement or otherwise made in connection with the Merger and the Transactions shall be true and correct in all material respects at and as of the Financing Closing Date with the same force and effect as though made on and as of such date except those which speak as of a certain date which shall continue to be true and correct in all material respects as of such date and on the Financing Closing Date. Each and all Collateral Documents executed or required of the agreements and conditions to be executed pursuant thereto performed or to consummate the Merger satisfied by the Company do notPrincipal Stockholders under this Agreement at or prior to the Financing Closing Date, including without limitation the provisions set forth in Section 6.19, shall have been duly performed or satisfied in all material respects, and the Principal Stockholders shall have furnished VIALOG with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of the Agreement and all Collateral Documents executed such agreements or required to be executed pursuant thereto conditions as VIALOG or to consummate the Merger and the consummation of the Transactions by the Company will not, (i) conflict with or violate the Organizational Documents of the Company or any Subsidiary, (ii) conflict with or violate any Applicable Law, or (iii) to counsel's knowledge, constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any Material Agreement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset of the Company or any Subsidiary is bound or affectedits counsel shall have reasonably requested,
(xs) No consents from or filings with any Governmental Authority (other than filings under Xxxxxxxx X. Xxxxxxxx shall have executed and delivered to VIALOG an employment and noncompetition agreement, substantially in the HSR Act, if applicableform attached as Exhibit 7.2(s), and filings of certificates of merger) are required for the execution and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by the Company,--------------
(xit) Required filings with Xxxxxxx Xxxxxxxx shall have executed and delivered to VIALOG an Employment Arrangement substantially in the Secretary of State of Georgia have been made,
(xii) To the knowledge of counsel, absence of pending or threatened material Legal Action,
(xiii) Nonapplicability of Georgia takeover laws, and
(xiv) such other customary matters concerning the Stockholders in connection with the Financing form attached as may reasonably be requested by the Underwriter or its counselExhibit 7.2(t).
Appears in 1 contract
Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers,
(b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Public Offering Closing Date of Xxxxx, Xxxx & Xxxxxxxx, P.C. , which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of the Company and public officials as are reasonable and customary to opinions delivered in the type of business transactions covered by this Agreement, addressing the following:
(i) Due organization, valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications,
(ii) Requisite corporate power and authority and all, to such counsel's knowledge, necessary Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted,
(iii) In respect of the Company and each Subsidiary, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of the date of this Agreement and the Effective Time and number of Option Securities and amount of Convertible Securities outstanding as of such dates,
(iv) Due authorization, valid issuance, full payment and non- accessibility assessability of outstanding shares of capital stock of the Company and each Subsidiary and (upon issuance on the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence of preemptive rights with respect thereto,
(v) To the knowledge of counsel, (A) there are not Contractual Obligations to repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any Subsidiary, or any Option Securities and Convertible Securities, (B) the Merger will not cause an acceleration of the exercise or vesting schedule of any Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule),
(vi) Corporate power and authority of the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, to perform its obligations thereunder and to consummate the Merger,
(vii) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger,
(viii) Due authorization and valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate the Merger and the Transactions except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification and noncompetition provisions included herein,;
(ix) The execution and delivery of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger by the Company do not, and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Transactions by the Company will not, (i) conflict with or violate the Organizational Documents of the Company or any Subsidiary, (ii) conflict with or violate any Applicable Law, or (iii) to counsel's knowledge, constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any Material Agreement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset of the Company or any Subsidiary is bound or affected,
(x) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by the Company,
(xi) Required filings with the Secretary of State of Georgia have been made,
(xii) To the knowledge of counsel, absence of pending or threatened material Legal Action,
(xiii) Nonapplicability of Georgia takeover laws, and
(xiv) such other customary matters concerning the Stockholders in connection with the Financing Public Offering as may reasonably be requested by the Underwriter or its counsel.,
Appears in 1 contract
Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers,
(b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Closing Date of Xxxxx, Xxxx Day, Xxxxxx & Xxxxxxxx, P.C. Xxxxx, which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of the Company Company, the Principal Stockholder, and public officials as are reasonable and customary to opinions delivered in the type of business transactions covered by this Agreement, addressing the following:
(i) Due organization, valid Valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications,
(ii) Requisite corporate power and authority and all, to such counsel's knowledge, necessary Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted,
(iii) In respect of the Company and each SubsidiaryCompany, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of the date of this Agreement and the Effective Time and number of Option Securities and amount of Convertible Securities outstanding as of such datesthe Effective Time,
(iviii) Due authorization, valid issuance, full payment and non- accessibility assessability of outstanding shares of capital stock of the Company and each Subsidiary and (upon issuance on the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence of preemptive rights with respect thereto,
(viv) To the knowledge of counsel, (A) there are not Contractual Obligations to repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any Subsidiary, or any Option Securities and Convertible Securities, (B) the Merger will not cause an acceleration of the exercise or vesting schedule of any Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule),
(viv) Corporate power and authority of the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, and to perform its obligations thereunder and to consummate the Merger,
(viivi) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger,
(viiivii) Due authorization and authorization, valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate the Merger and the Transactions except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification and noncompetition provisions included hereinDocuments,
(ixviii) The execution and delivery of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger by the Company do not, and the performance by the Company of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Transactions Merger by the Company will not, (i) conflict with or violate the Organizational Documents of the Company or any Subsidiarygenerally applicable to transactions of this type, (ii) conflict with or violate any Applicable Law, or (iii) to counsel's knowledge, in the absence of any consents obtained prior to the Effective Time constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation ofcancellation, or result in the creation of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any to those Material Agreement Agreements to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset set forth on Schedule 3.17 of the Company or any Subsidiary is bound or affectedDisclosure Schedule,
(xix) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution execution, delivery and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate by the Merger Company and the consummation of the Merger by the Company,
(xi) Required filings with the Secretary of State of Georgia have been made,
(xiix) To the knowledge of counsel, absence of pending or threatened material Legal Action,
(xiii) Nonapplicability of Georgia takeover laws, and
(xivxi) such Such other customary matters concerning the Stockholders in connection with the Financing as may reasonably be requested by the Underwriter or its counsel,
(c) No Legal Action or other Claim shall be pending or threatened at any time prior to or on the Financing Closing Date before or by any Authority or by any other Person seeking to restrain or prohibit, or damages or other relief in connection with, the execution and delivery of this Agreement or the consummation of the Merger and the Transactions or which might in the reasonable judgment of VIALOG have any Adverse Effect on the Company or the Company and its Subsidiaries taken as a whole or, assuming consummation of the Merger and the Participating Mergers, VIALOG and its Subsidiaries taken as a whole,
(d) Each Principal Stockholder (other than a Principal Stockholder executing and delivering the agreement contemplated by Section 7.2(s)) and other Persons listed on Schedule 7.2(d) (or Section 7.2(d) of the Disclosure Schedule, as the case may be) shall have executed and delivered to VIALOG a noncompetition agreement, substantially in the form of Exhibit 7.2(d), ---------------
(e) The representations, warranties, covenants and agreements of the Company contained in this Agreement or otherwise made in writing by it or on its behalf pursuant to this Agreement or otherwise made in connection with the Merger and the Transactions shall be true and correct in all material respects at and as of the Financing Closing Date with the same force and effect as though made on and as of such date except those which speak as of a certain date which shall continue to be true and correct in all material respects as of such date and the Financing Closing Date, each and all of the agreements and conditions to be performed or satisfied by the Company under this Agreement at or prior to the Financing Closing Date shall have been duly performed or satisfied in all material respects, and the Company shall have furnished VIALOG with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as VIALOG shall have reasonably requested,
(f) VIALOG shall have received from its Accountants, a certificate or letter, dated the Financing Closing Date, to the effect that, on the basis of a limited review in accordance with the standards for such reviews promulgated by the American Institute of Certified Public Accountants as outlined in Statement of Standards of Accounting and Review Services No. 1, they have no reason to believe that the unaudited financial statements set forth in the Financing Document were not prepared in accordance with GAAP and practices consistent with those followed in the preparation of the audited financial statements audited by the Accountants as contemplated by Section 6.1(a), or that any material modifications of such unaudited financial statements are required for a fair presentation of the financial position or results of operations or changes in financial position of the Company or that during the period from the last day covered by the most recent financial statements set forth in the Financing Document prepared by the Accountants as contemplated by Section 6.1(a) to a date not more than five (5) days prior to the Financing Closing Date, there has been any Adverse Change in the financial position or results of the operations of the Company or the Company and its Subsidiaries taken as a whole which is not described in the Financing Document,
(g) All actions taken by the Stockholders to approve and adopt this Agreement, the Merger and the Transactions shall comply in all respects with and shall be legal, valid, binding, enforceable and effective under the Law of the jurisdiction of incorporation of the Company, its Organizational Documents and all Material Agreements to which it or any of its Subsidiaries is a party or by which it or any of them or any of its or any of their property or assets is bound,
(h) The Company shall have obtained consents to the assignment and continuation of all Material Agreements which, in the reasonable judgment of VIALOG or its counsel, require such consents, including appropriate binders or consents as to policies of insurance to be assigned to VIALOG or the Surviving Corporation under this Agreement. The Company shall have obtained satisfaction and discharge of all Liens set forth in Section 3.15(b) of the Disclosure Schedule, and shall have obtained, on terms and conditions reasonably satisfactory to VIALOG, all Governmental Authorizations and Private Authorizations, and all modifications of Contractual Obligations relating to Indebtedness, which VIALOG deems, reasonably necessary or desirable in order to own and operate and conduct the business of the Surviving Corporation, substantially on the basis heretofore owned, operated and conducted by the Company and proposed to be owned, operated and conducted by VIALOG,
(i) Between the date of this Agreement and the Financing Closing Date, there shall not have occurred and be continuing any Adverse Change affecting the Company or the Company and its Subsidiaries taken as a whole from the condition thereof (financial and other) reflected in the Financial Statements or in the audited financial statements prepared by the Accountants as contemplated by Section 6.1(a) or in the most recent financial statements set forth in the Financing Document,
(j) The filing and waiting period requirements (if applicable) under the HSR Act relating to the consummation of the Merger and the Participating Mergers shall have been complied with,
(k) No Law shall have been enacted or made by or on behalf of any Authority nor shall any legislation have been introduced and favorably reported for passage to either House of Congress by any committee, nor shall any Legal Action by any Authority been commenced or threatened, nor shall any decision, order or other action of any Authority have been rendered or taken, which in VIALOG's reasonable judgment, could have any Adverse Effect on the Company or the Company and its Subsidiaries taken as a whole, or could restrain, prevent or change the Merger or the Transactions or Adversely Affect the ability of the Principal Stockholder to perform its obligations under this Agreement, or the ability of VIALOG to continue to own, operate and conduct the business of the Surviving Corporation, substantially on the basis heretofore owned, operated and conducted by the Company and as proposed to be owned, operated and conducted by the Surviving Corporation,
(l) VIALOG shall have received copies of any environmental audits the Company has received in respect of all real property owned or leased by the Company or any of its Subsidiaries. VIALOG, in its sole discretion and at its sole expense, may engage an independent environmental engineer to perform such audits and the results thereof shall not be materially inconsistent with the representations and warranties set forth in Section 3.23, (m) Each of the directors of the Company and each of its Subsidiaries and each trustee under each Plan shall have submitted his or her unqualified written resignation, dated as of the Financing Closing Date,
(n) The Principal Stockholder shall have delivered to VIALOG an agreement, substantially in the form of Exhibit 7.2(n), dated the Financing --------------- Closing Date, releasing the Company and its Subsidiaries from any and all Claims against them (other than Claims arising from such Principal Stockholder having acted as a director or officer of the Company or such Subsidiary as contemplated by Section 6.7),
(o) This subsection intentionally left blank,
(p) The Company shall not have suffered any material damage, destruction or loss (whether or not covered by insurance) or any material acquisition or taking of property by any Authority, nor shall it have experienced any material work stoppage,
(q) Except for such leases and other Contractual Obligations as are set forth on Schedule 7.2(q) (or Section 7.2(q) of the Disclosure Schedule, as the case may be) and are executed, delivered and effective as of the Effective Time, all Contractual Obligations set forth in Section 3.9 of the Disclosure Schedule shall have been satisfied and discharged as of the Financing Closing Date,
(r) The representations, warranties, covenants and agreements of the Principal Stockholder contained in this Agreement or otherwise made in writing by or on behalf of the Principal Stockholder pursuant to this Agreement or otherwise made in connection with the Merger and the Transactions shall be true and correct in all material respects at and as of the Financing Closing Date with the same force and effect as though made on and as of such date except those which speak as of a certain date which shall continue to be true and correct in all material respects as of such date and on the Financing Closing Date. Each and all of the agreements and conditions to be performed or satisfied by the Principal Stockholder under this Agreement at or prior to the Financing Closing Date, including without limitation the provisions set forth in Section 6.20, shall have been duly performed or satisfied in all material respects, and the Principal Stockholder shall have furnished VIALOG with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as VIALOG or its counsel shall have reasonably requested,
(s) The Principal Stockholder shall have executed and delivered to VIALOG an employment and noncompetition agreement, substantially in the form of Exhibit 7.2(s), -------------
(t) The individuals listed on Schedule 7.2(t) (or Section 7.2(t) of the Disclosure Schedule, as the case may be) shall have executed and delivered to VIALOG an Employment Arrangement substantially in the form of Exhibit 7.2(t) and reasonably satisfactory to VIALOG and its counsel, and
(u) VIALOG shall have received a letter from its Accountants to the effect that the Merger and the Transactions, the Participating Mergers and the transactions contemplated thereby, and the acquisition of stock of any Other Participating Company by VIALOG and the transactions contemplated thereby together qualify as a transaction to which Section 368(a) of the Code applies or as a cash forward merger pursuant to the Code and will not result in any taxable income or gain or deductible loss to the Company, VIALOG or VIALOG Merger Subsidiary.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Call Points Inc)
Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers,
(b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Public Offering Closing Date of XxxxxXxxxxxx, Xxxx Xxxxxxx & Xxxxxxxx, P.C. , Xxxxx which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of the Company and public officials as are reasonable and customary to opinions delivered in the type of business transactions covered by this Agreement, addressing the following:
(i) Due organization, valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications,
(ii) Requisite corporate power and authority and alland, to such counsel's knowledge, all necessary material Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted,
(iii) In respect of the Company and each SubsidiaryCompany, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of the date of this Agreement and the Effective Time and number of Option Securities and amount of Convertible Securities outstanding as of such dates,
(iv) Due authorization, valid issuance, full payment and non- accessibility assessability of outstanding shares of capital stock of the Company and each Subsidiary and (upon issuance on the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence waiver of preemptive rights with respect thereto,
(v) To the knowledge of counsel, (A) there are not Contractual Obligations to repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any SubsidiaryStock, or any Option Securities and Convertible Securitiesand, (B) the Merger will not cause an acceleration of the exercise or vesting schedule of any Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule)Securities,
(vi) Corporate power and authority of the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, to perform its obligations thereunder and to consummate the Merger,
(vii) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger,
(viii) Due authorization and valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate the Merger and the Transactions except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification and noncompetition provisions included herein,;
(ix) The execution and delivery of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger by the Company do not, and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Transactions by the Company will not, (i) conflict with or violate the Organizational Documents of the Company or any SubsidiaryCompany, (ii) conflict with or violate any Applicable Law, or (iii) to counsel's knowledge, constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any Material Agreement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset of the Company or any Subsidiary is bound or affected,
(x) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by the Company,
(xi) Required filings with the Secretary of State of Georgia Missouri have been made,
(xii) To the knowledge of counsel, absence of pending or threatened material Legal Action,
(xiii) Nonapplicability of Georgia Missouri takeover laws, and
(xiv) such other customary matters concerning the Stockholders in connection with the Financing Public Offering as may reasonably be requested by the Underwriter or its counsel.,
Appears in 1 contract
Samples: Merger Agreement (Vialog Corp)
Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers,
(b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Public Offering Closing Date of Xxxxx, Xxxx Day, Xxxxxx & Xxxxxxxx, P.C. Xxxxx, which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of the Company Company, the Principal Stockholder, and public officials as are reasonable and customary to opinions delivered in the type of business transactions covered by this Agreement, addressing the following:
(i) Due organization, valid Valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications,
(ii) Requisite corporate power and authority and all, to such counsel's knowledge, necessary Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted,
(iii) In respect of the Company and each SubsidiaryCompany, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of the date of this Agreement and the Effective Time and number of Option Securities and amount of Convertible Securities outstanding as of such datesthe Effective Time,
(iviii) Due authorization, valid issuance, full payment and non- accessibility assessability of outstanding shares of capital stock of the Company and each Subsidiary and (upon issuance on the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence of preemptive rights with respect thereto,
(viv) To the knowledge of counsel, (A) there are not Contractual Obligations to repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any Subsidiary, or any Option Securities and Convertible Securities, (B) the Merger will not cause an acceleration of the exercise or vesting schedule of any Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule),
(viv) Corporate power and authority of the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, and to perform its obligations thereunder and to consummate the Merger,
(viivi) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger,
(viiivii) Due authorization and authorization, valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate the Merger and the Transactions except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification and noncompetition provisions included hereinDocuments,
(ixviii) The execution and delivery of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger by the Company do not, and the performance by the Company of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Transactions Merger by the Company will not, (i) conflict with or violate the Organizational Documents of the Company or any Subsidiarygenerally applicable to transactions of this type, (ii) conflict with or violate any Applicable Law, or (iii) to counsel's knowledge, in the absence of any consents obtained prior to the Effective Time constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation ofcancellation, or result in the creation of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any to those Material Agreement Agreements to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset set forth on Schedule 3.17 of the Company or any Subsidiary is bound or affectedDisclosure Schedule,
(xix) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution execution, delivery and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate by the Merger Company and the consummation of the Merger by the Company,
(xi) Required filings with the Secretary of State of Georgia have been made,
(xiix) To the knowledge of counsel, absence of pending or threatened material Legal Action,
(xiii) Nonapplicability of Georgia takeover laws, and
(xivxi) such Such other customary matters concerning the Stockholders in connection with the Financing Public Offering as may reasonably be requested by the Underwriter or its counsel,
(c) No Legal Action or other Claim shall be pending or threatened at any time prior to or on the Public Offering Closing Date before or by any Authority or by any other Person seeking to restrain or prohibit, or damages or other relief in connection with, the execution and delivery of this Agreement or the consummation of the Merger and the Transactions or which might in the reasonable judgment of VIALOG have any Adverse Effect on the Company or the Company and its Subsidiaries taken as a whole or, assuming consummation of the Merger and the Participating Mergers, VIALOG and its Subsidiaries taken as a whole,
(d) Each Principal Stockholder (other than a Principal Stockholder executing and delivering the agreement contemplated by Section 7.2(s)) and other Persons listed on Schedule 7.2(d) (or Section 7.2(d) of the Disclosure Schedule, as the case may be) shall have executed and delivered to VIALOG a noncompetition agreement, substantially in the form of Exhibit 7.2(d), --------------
(e) The representations, warranties, covenants and agreements of the Company contained in this Agreement or otherwise made in writing by it or on its behalf pursuant to this Agreement or otherwise made in connection with the Merger and the Transactions shall be true and correct in all material respects at and as of the Public Offering Closing Date with the same force and effect as though made on and as of such date except those which speak as of a certain date which shall continue to be true and correct in all material respects as of such date and the Public Offering Closing Date, each and all of the agreements and conditions to be performed or satisfied by the Company under this Agreement at or prior to the Public Offering Closing Date shall have been duly performed or satisfied in all material respects, and the Company shall have furnished VIALOG with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as VIALOG shall have reasonably requested,
(f) VIALOG shall have received from its Accountants, a certificate or letter, dated the Public Offering Closing Date, to the effect that, on the basis of a limited review in accordance with the standards for such reviews promulgated by the American Institute of Certified Public Accountants as outlined in Statement of Standards of Accounting and Review Services No. 1, they have no reason to believe that the unaudited financial statements set forth in the Registration Statement were not prepared in accordance with GAAP and practices consistent with those followed in the preparation of the audited financial statements audited by the Accountants as contemplated by Section 6.1(a), or that any material modifications of such unaudited financial statements are required for a fair presentation of the financial position or results of operations or changes in financial position of the Company or that during the period from the last day covered by the most recent financial statements set forth in the Registration Statement prepared by the Accountants as contemplated by Section 6.1(a) to a date not more than five (5) days prior to the Public Offering Closing Date, there has been any Adverse Change in the financial position or results of the operations of the Company or the Company and its Subsidiaries taken as a whole which is not described in the Registration Statement,
(g) All actions taken by the Stockholders to approve and adopt this Agreement, the Merger and the Transactions shall comply in all respects with and shall be legal, valid, binding, enforceable and effective under the Law of the jurisdiction of incorporation of the Company, its Organizational Documents and all Material Agreements to which it or any of its Subsidiaries is a party or by which it or any of them or any of its or any of their property or assets is bound,
(h) The Company shall have obtained consents to the assignment and continuation of all Material Agreements which, in the reasonable judgment of VIALOG or its counsel, require such consents, including appropriate binders or consents as to policies of insurance to be assigned to VIALOG or the Surviving Corporation under this Agreement. The Company shall have obtained satisfaction and discharge of all Liens set forth in Section 3.15(b) of the Disclosure Schedule, and shall have obtained, on terms and conditions reasonably satisfactory to VIALOG, all Governmental Authorizations and Private Authorizations, and all modifications of Contractual Obligations relating to Indebtedness, which VIALOG deems, reasonably necessary or desirable in order to own and operate and conduct the business of the Surviving Corporation, substantially on the basis heretofore owned, operated and conducted by the Company and proposed to be owned, operated and conducted by VIALOG,
(i) Between the date of this Agreement and the Public Offering Closing Date, there shall not have occurred and be continuing any Adverse Change affecting the Company or the Company and its Subsidiaries taken as a whole from the condition thereof (financial and other) reflected in the Financial Statements or in the audited financial statements prepared by the Accountants as contemplated by Section 6.1(a) or in the most recent financial statements set forth in the Registration Statement,
(j) The filing and waiting period requirements (if applicable) under the HSR Act relating to the consummation of the Merger and the Participating Mergers shall have been complied with,
(k) No Law shall have been enacted or made by or on behalf of any Authority nor shall any legislation have been introduced and favorably reported for passage to either House of Congress by any committee, nor shall any Legal Action by any Authority been commenced or threatened, nor shall any decision, order or other action of any Authority have been rendered or taken, which in VIALOG's reasonable judgment, could have any Adverse Effect on the Company or the Company and its Subsidiaries taken as a whole, or could restrain, prevent or change the Merger or the Transactions or Adversely Affect the ability of the Principal Stockholder to perform its obligations under this Agreement, or the ability of VIALOG to continue to own, operate and conduct the business of the Surviving Corporation, substantially on the basis heretofore owned, operated and conducted by the Company and as proposed to be owned, operated and conducted by the Surviving Corporation,
(l) VIALOG shall have received copies of any environmental audits the Company has received in respect of all real property owned or leased by the Company or any of its Subsidiaries. VIALOG, in its sole discretion and at its sole expense, may engage an independent environmental engineer to perform such audits and the results thereof shall not be materially inconsistent with the representations and warranties set forth in Section 3.23,
(m) Each of the directors of the Company and each of its Subsidiaries and each trustee under each Plan shall have submitted his or her unqualified written resignation, dated as of the Public Offering Closing Date,
(n) The Principal Stockholder shall have delivered to VIALOG an agreement, substantially in the form of Exhibit 7.2(n), dated the Public -------------- Offering Closing Date, releasing the Company and its Subsidiaries from any and all Claims against them (other than Claims arising from such Principal Stockholder having acted as a director or officer of the Company or such Subsidiary as contemplated by Section 6.7),
(o) The Registration Rights Agreement shall have been executed and delivered by the Stockholders and the Executive Officers and principal Stockholders of VIALOG.
(p) The Company shall not have suffered any material damage, destruction or loss (whether or not covered by insurance) or any material acquisition or taking of property by any Authority, nor shall it have experienced any material work stoppage,
(q) Except for such leases and other Contractual Obligations as are set forth on Schedule 7.2(q) (or Section 7.2(q) of the Disclosure Schedule, as the case may be) and are executed, delivered and effective as of the Effective Time, all Contractual Obligations set forth in Section 3.9 of the Disclosure Schedule shall have been satisfied and discharged as of the Public Offering Closing Date,
(r) The representations, warranties, covenants and agreements of the Principal Stockholder contained in this Agreement or otherwise made in writing by or on behalf of the Principal Stockholder pursuant to this Agreement or otherwise made in connection with the Merger and the Transactions shall be true and correct in all material respects at and as of the Public Offering Closing Date with the same force and effect as though made on and as of such date except those which speak as of a certain date which shall continue to be true and correct in all material respects as of such date and on the Public Offering Closing Date. Each and all of the agreements and conditions to be performed or satisfied by the Principal Stockholder under this Agreement at or prior to the Public Offering Closing Date, including without limitation the provisions set forth in Section 6.20, shall have been duly performed or satisfied in all material respects, and the Principal Stockholder shall have furnished VIALOG with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as VIALOG or its counsel shall have reasonably requested,
(s) The Principal Stockholder shall have executed and delivered to VIALOG an employment and noncompetition agreement, substantially in the form of Exhibit 7.2(s), --------------
(t) The individuals listed on Schedule 7.2(t) (or Section 7.2(t) of the Disclosure Schedule, as the case may be) shall have executed and delivered to VIALOG an Employment Arrangement substantially in the form of Exhibit 7.2(t) and reasonably satisfactory to VIALOG and its counsel, and
(u) VIALOG shall have received a letter from its Accountants to the effect that the Merger and the Transactions, the Participating Mergers and the transactions contemplated thereby, and the acquisition of stock of any Other Participating Company by VIALOG and the transactions contemplated thereby together qualify as a transaction to which Section 351 of the 49 Code applies and will not result in any taxable income or gain or deductible loss to the Company, VIALOG or VIALOG Merger Subsidiary.
Appears in 1 contract
Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers,
(b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Public Offering Closing Date of Wells, Jaworski, Xxxxxxxxx & Xxxxx, Xxxx & Xxxxxxxx, P.C. , which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of the Company and public officials as are reasonable and customary to opinions delivered in the type of business transactions covered by this Agreement, addressing the following:
(i) Due organization, valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications,
(ii) Requisite corporate power and authority and all, to such counsel's knowledge, necessary Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted,
(iii) In respect of the Company and each Subsidiary, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of the date of this Agreement and the Effective Time and number of Option Securities and amount of Convertible Securities outstanding as of such dates,
(iv) Due authorization, valid issuance, full payment and non- accessibility assessability of outstanding shares of capital stock of the Company and each Subsidiary and (upon issuance on the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence of preemptive rights with respect thereto,
(v) To the knowledge of counsel, (A) there are not Contractual Obligations to Obligationsto repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any Subsidiary, or any Option Securities and Convertible Securities, (B) the Merger will not cause an acceleration of the exercise or vesting schedule of any To the knowledge of counsel, (A) there are not Contractual Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule),
(vi) Corporate power and authority of the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, to perform its obligations thereunder and to consummate the Merger,
(vii) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger,
(viii) Due authorization and valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate the Merger and the Transactions except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification and noncompetition provisions included herein,;
(ix) The execution and delivery of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger by the Company do not, and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Transactions by the Company will not, (i) conflict with or violate the Organizational Documents of the Company or any Subsidiary, (ii) conflict with or violate any Applicable Law, or (iii) to counsel's knowledge, constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any Material Agreement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset of the Company or any Subsidiary is bound or affected,
(x) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by the Company,
(xi) Required filings with the Secretary of State of Georgia New Jersey have been made,
(xii) To the knowledge of counsel, absence of pending or threatened material Legal Action,
(xiii) Nonapplicability of Georgia New Jersey takeover laws, and
(xiv) such other customary matters concerning the Stockholders in connection with the Financing Public Offering as may reasonably be requested by the Underwriter or its counsel.,
Appears in 1 contract
Conditions to Obligations of VIALOG and VIALOG Merger Subsidiary. The ---------------------------------------------------------------- obligations of VIALOG and VIALOG Merger Subsidiary to effect the Merger will be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) The Company shall have complied in all material respects with its agreements contained in this Agreement, the certificates to be furnished to VIALOG pursuant to this Section shall be true, correct and complete, all Collateral Documents shall be reasonably satisfactory in form, scope and substance to VIALOG and its counsel, and VIALOG and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers,
(b) The Company shall have furnished VIALOG and the Underwriters with the favorable opinion, dated the Financing Public Offering Closing Date of XxxxxXxxxxx, Xxxx Breed, Hart, Murphy & XxxxxxxxXxxxxxx, P.C. P.C., which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of the Company and public officials as are reasonable and customary to opinions delivered in the type of business transactions covered by this Agreement, addressing the following:
(i) Due organization, valid existence and good standing of the Company and each Subsidiary, together with an opinion as to foreign qualifications,
(ii) Requisite corporate power and authority and all, to such counsel's knowledge, necessary Governmental Authorizations for the Company and each Subsidiary to own, lease and operate its properties and to carry on its business as it is now being conducted,
(iii) In respect of the Company and each Subsidiary, the number of shares of capital stock or other voting securities authorized, issued, reserved for issuance or outstanding as of the date of this Agreement and the Effective Time and number of Option Securities and amount of Convertible Securities outstanding as of such dates,
(iv) Due authorization, valid issuance, full payment and non- accessibility assessability of outstanding shares of capital stock of the Company and each Subsidiary and (upon issuance on the terms and conditions specified in the Option Securities and Convertible Securities pursuant to which they are issuable) all shares of such capital stock subject to issuance and absence of preemptive rights with respect thereto,
(v) To the knowledge of counsel, (A) there are not Contractual Obligations to repurchase, redeem or otherwise acquire any shares of Company Stock or any stock of any Subsidiary, or any Option Securities and Convertible Securities, (B) the Merger will not cause an acceleration of the exercise or vesting schedule of any Option Securities and Convertible Securities and (C) all outstanding shares of stock of each Subsidiary are owned by the Company or by another Subsidiary, free and clear of any Lien (except as set forth in Section 3.1(d) of the Disclosure Schedule),
(vi) Corporate power and authority of the Company to execute and deliver the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger, to perform its obligations thereunder and to consummate the Merger,
(vii) Due and valid authorization by the Company and the Principal Stockholder by all necessary corporate (and other) action of the execution, delivery and performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation by the Company of the Merger,
(viii) Due authorization and valid execution and delivery by, and enforceability against, the Company and the Principal Stockholder of the Agreement and all Collateral Documents executed or required to be executed pursuant hereto or thereto or to consummate the Merger and the Transactions except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification and noncompetition provisions included herein,;
(ix) The execution and delivery of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger by the Company do not, and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Transactions by the Company will not, (i) conflict with or violate the Organizational Documents of the Company or any Subsidiary, (ii) conflict with or violate any Applicable Law, or (iii) to counsel's knowledge, constitute a breach or default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation of a Lien on any property or asset of the Company or any Subsidiary pursuant to, any Material Agreement to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or any property or asset of the Company or any Subsidiary is bound or affected,
(x) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution and delivery of the Agreement by the Company and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by the Company,
(xi) Required filings with the Secretary of State of Georgia Massachusetts have been made,
(xii) To the knowledge of counsel, absence of pending or threatened material Legal Action,
(xiii) Nonapplicability of Georgia Massachusetts takeover laws, and
(xiv) such other customary matters concerning the Stockholders in connection with the Financing Public Offering as may reasonably be requested by the Underwriter or its counsel.,
Appears in 1 contract
