Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other transactions contemplated hereby are further subject to the fulfillment of the following conditions, any of which may be waived only in writing in whole or part by Parent or Merger Sub: (a) Except for the representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "Material Adverse Impact" (i) the representations and warranties of the Company set forth in this Agreement that are qualified by materiality or "Material Adverse Effect" shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time as if made on and as of the Effective Time, and (ii) the representations and warranties of the Company contained in this Agreement that are not so qualified shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Effective Time as if made on and as of the Effective Time except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date). The representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "Material Adverse Impact" shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects as of the Effective Time (without taking into account any qualifications or exceptions for the Company's Knowledge or "Material Adverse Impact") as if made on and as of the Effective Time, except for such inaccuracies or breaches that in the aggregate do not have or constitute a Material Adverse Effect on the Company. (b) The Company shall have in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time. (c) From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer and Chief Financial Officer, certifying the satisfaction of the conditions set forth in Sections 7.3(a), (b) and (c). (e) Parent shall have received all written consents, approvals, interim approvals, assignments, waivers, orders, authorizations or other certificates reasonably necessary to provide for the continuation in full force and effect of those Material Contracts set forth on Section 7.3(e) of the Parent Disclosure Letter and all of the Existing Permits of the Company and for the Company to consummate the Merger and other transactions contemplated hereby, including, without limitation, the approval of applicable Educational Agencies, Accrediting Bodies and Governmental Entities, except (1) approval from the DOE, (2) approval from any Educational Agency that, under the agency's policies or standards, cannot be obtained or, due to administrative preference, may be obtained solely in interim form prior to Closing or (3) where the failure to receive such consents, approvals, interim approvals, assignments, waivers, orders, authorizations or certificates could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or could not affect adversely the ability of the Surviving Corporation to continue to conduct the business of the Company consistent with the Company's historical ordinary course of business. Notwithstanding anything herein to the contrary, to the extent that Parent receives an interim approval from any applicable Educational Agency or Accrediting Body, such interim approval will not satisfy this condition to closing if such interim approval is issued because there is some substantive issue with respect to issuance of full approval as opposed to being issued because it is such Educational Agency's or Accrediting Body's normal practice or procedure or administrative preference. Parent shall have received written or oral assurances from the Georgia Nonpublic Postsecondary Education Commission, the Accrediting Bureau Of Health Education Schools, the Missouri Coordinating Board for Higher Education, the Pennsylvania State Board of Private Licensed Schools, and the Accrediting Council for Independent Colleges and Schools, confirming that such Educational Agency does not believe that any impediment exists with respect to issuance of the Educational Approvals which Parent requires for its operation of the Company's Schools after the Closing. (f) Parent shall have received an opinion from Xxxxxx Xxxxxx Xxxxx Xxxxxxxx dated the Closing Date, based upon factual representations of Parent and the Company, to the effect that the Merger will constitute a "reorganization" for federal income tax purposes within the meaning of Section 368(a) of the Code and no gain or loss will be recognized by Parent or its stockholders as a result of the Merger; provided, however, that if Xxxxxx Xxxxxx Xxxxx Xxxxxxxx does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to the Parent if Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A. renders such opinion to Parent. (g) All actions to be taken by the Company in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to Parent and its counsel. (h) Parent shall have obtained a written statement from DOE providing, without unduly burdensome limitations, that DOE does not see any impediment to issuing a Temporary Program Participation Agreement with respect to each Institution following the Closing. (i) All consents, approvals, interim approvals, orders or authorizations of, or registrations, declarations or filings with, any Governmental Entity or Accrediting Body required by or with respect to the Company, Parent or any of their respective subsidiaries in connection with the execution and delivery of this Agreement or the consummation of the Merger and other transactions contemplated hereby shall have been obtained or made, including, without limitation,
Appears in 1 contract
Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other transactions contemplated hereby are further subject to the fulfillment of the following conditions, any of which may be waived only in writing in whole or part by Parent or Merger Sub:
(a) Except for the representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "Material Adverse Impact" (i) the representations and warranties of the Company set forth in this Agreement that are qualified by materiality or "Material Adverse Effect" shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time as if made on and as of the Effective Time, and (ii) the The representations and warranties of the Company contained in this Agreement that are not so qualified shall have been true and correct in all material respects as of the date herein (which for purposes of this Agreement and paragraph (a) shall be true and correct in all material respects read as though none of the Effective Time as if made on and as of the Effective Time except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date). The representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "them contained any Material Adverse Impact" shall have been true and correct in all respects as of the date of this Agreement and Effect or materiality qualification) shall be true and correct in all respects as of the Effective Time (without taking into account any qualifications or exceptions for with the Company's Knowledge or "Material Adverse Impact") same effect as if though made on and as of the Effective Time, Time (provided that any representations and warranties made as of a specified date shall be required only to continue at the Effective Time to be true and correct as of such specified date) except (1) for such inaccuracies or breaches that changes specifically permitted by the terms of this Agreement and (2) where the failure of the representations and warranties to be true and correct in all respects could not in the aggregate do not reasonably be expected to have or constitute a Material Adverse Effect on the Company. No effect will be given to any update or modification of the Company Disclosure Letter made or purported to be made.
(b) The Company shall have in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time.
(c) From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company.
(d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer and Chief Financial Officer, certifying the satisfaction of the conditions set forth in Sections 7.3(a), ) and (b) and Section 7.2(d).
(c)d) From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company.
(e) Parent shall have received all written consents, approvals, interim approvals, assignments, waivers, orders, authorizations or other certificates reasonably necessary to provide for the continuation in full force and effect of those any and all Material Contracts set forth on Section 7.3(e) of the Parent Disclosure Letter and all of the Existing Permits of the Company and for the Company to consummate the Merger and the other transactions contemplated hereby, including, without limitation, temporary authority to operate from the approval California Bureau of Private Postsecondary Vocational Education and other applicable Educational Agencies, Accrediting Bodies state education regulatory bodies agencies and any other applicable Governmental Entities, except (1) approval from the DOE, DOE and (2) approval from any Educational Agency that, under the agency's policies or standards, cannot be obtained or, due to administrative preference, may be obtained solely in interim form prior to Closing or (3) where the failure to receive such consents, approvals, interim approvals, assignments, waivers, orders, authorizations or certificates could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or could not affect adversely the ability of the Surviving Corporation to continue to conduct the business of the Company consistent with the Company's historical ordinary course of business. Notwithstanding anything herein to the contrary, to the extent that Parent receives an interim approval from any applicable Educational Agency or Accrediting Body, such interim approval will not satisfy this condition to closing if such interim approval is issued because there is some substantive issue with respect to issuance of full approval as opposed to being issued because it is such Educational Agency's or Accrediting Body's normal practice or procedure or administrative preference. Parent shall have received written or oral assurances from the Georgia Nonpublic Postsecondary Education Commission, the Accrediting Bureau Of Health Education Schools, the Missouri Coordinating Board for Higher Education, the Pennsylvania State Board of Private Licensed Schools, and the Accrediting Council for Independent Colleges and Schools, confirming that such Educational Agency does not believe that any impediment exists with respect to issuance of the Educational Approvals which Parent requires for its operation of the Company's Schools after the Closing.
(f) Parent shall have received an opinion from Xxxxxx Xxxxxx Xxxxx Xxxxxxxx dated the Closing Date, based upon factual representations of Parent and the Company, to the effect that the Merger will constitute a "reorganization" for federal income tax purposes within the meaning of Section 368(a) of the Code and no gain or loss will be recognized by Parent or its stockholders as a result of the Merger; provided, however, that if Xxxxxx Xxxxxx Xxxxx Xxxxxxxx does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to the Parent if Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A. renders such opinion to Parent.
(g) All actions to be taken by the Company in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to Parent and its counsel.
(g) Parent shall have received a Noncompetition Agreement, in the form attached hereto as Exhibit 7.3(g), from Xxxxx Xxxxxx.
(h) The Company shall have complied in all respects with that certain Substantive Change Procedure H: the Initiation of a Change of Governance, Ownership, or Control letter from the Commission on Colleges Southern Association of Colleges and Schools, and shall have received approval for such substantive change such that Parent shall be able to operate the Company's schools in the manner that in which they are currently conducted.
(i) Parent and the current governing board of American Intercontinental University ("AIU") shall have agreed upon a new Chief Executive Officer of AIU, which shall not be R. Xxxxxx Xxxxxx or any of his Affiliates, family members or other entities in which he has an interest, financial or otherwise. In addition, the governing board of AIU shall not include R. Xxxxxx Xxxxxx or any of his Affiliates, family members or other entities in which he has an interest, financial or otherwise.
(j) The Company shall have delivered to Parent within ten (10) business days of the date hereof releases in the form of Exhibit 7.3(j) from each of Xxxxxx X. Xxxxxxx, Xx., Xxxx X. Xxxxxxx and Xxxxxx Xxxxxx; provided however, in the event the Company shall have delivered such releases after that due date but prior to the Closing and the Parent shall have not terminated this Agreement, then such condition shall be deemed satisfied.
(k) Parent shall have obtained a written statement from DOE providing, without unduly burdensome limitationsto the satisfaction of Parent in its sole discretion, that DOE does not see any impediment to issuing a Temporary Program Participation Agreement with respect TPPA to each Institution AIU following the Closing.
(il) All consents, approvals, interim approvals, orders or authorizations of, or registrations, declarations or filings with, any Governmental Entity or Accrediting Body required by or with respect to Parent shall have obtained reasonable assurance from the Company's landlords that Parent shall be able to remain in possession of those parcels of Rental Real Estate which are described in the Leases set forth in Section 4.4(2)(d), Parent or any (e) and (f) of their respective subsidiaries the Company Disclosure Letter in connection accordance with the execution terms and delivery provisions of this Agreement such Leases and shall be able to operate the Company's Schools or offices, as the consummation of case may be, at the Merger and other transactions contemplated hereby shall have been obtained locations described in the aforementioned Leases in the manner in which such Schools or made, including, without limitation,offices are currently conducted after the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Career Education Corp)
Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other transactions contemplated hereby are further subject to the fulfillment of the following conditions, any of which may be waived only in writing in whole or part by Parent or Merger Sub:
(a) Except for the representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "Material Adverse Impact" (i) the representations and warranties of the Company set forth in this Agreement that are qualified by materiality or "Material Adverse Effect" shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time as if made on and as of the Effective Time, and (ii) the The representations and warranties of the Company contained in this Agreement that are not so qualified shall have been true and correct in all material respects as of the date herein (which for purposes of this Agreement and paragraph (a) shall be true and correct in all material respects read as though none of the Effective Time as if made on and as of the Effective Time except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date). The representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "them contained any Material Adverse Impact" shall have been true and correct in all respects as of the date of this Agreement and Effect or materiality qualification) shall be true and correct in all respects as of the Effective Time (without taking into account any qualifications or exceptions for with the Company's Knowledge or "Material Adverse Impact") same effect as if though made on and as of the Effective Time, Time (provided that any representations and warranties made as of a specified date shall be required only to continue at the Effective Time to be true and correct as of such specified date) except (1) for such inaccuracies or breaches that changes specifically permitted by the terms of this Agreement and (2) where the failure of the representations and warranties to be true and correct in all respects could not in the aggregate do not reasonably be expected to have or constitute a Material Adverse Effect on the Company. No effect will be given to any update or modification of the Company Disclosure Letter made or purported to be made.
(b) The Company shall have in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time.
(c) From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company.
(d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer and Chief Financial Officer, certifying the satisfaction of the conditions set forth in Sections 7.3(a), ) and (b) and Section 7.2(d).
(c)d) From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company.
(e) Parent shall have received all written consents, approvals, interim approvals, assignments, waivers, orders, authorizations or other certificates reasonably necessary to provide for the continuation in full force and effect of those any and all Material Contracts set forth on Section 7.3(e) of the Parent Disclosure Letter and all of the Existing Permits of the Company and for the Company to consummate the Merger and the other transactions contemplated hereby, including, without limitation, temporary authority to operate from the approval California Bureau of Private Postsecondary Vocational Education and other applicable Educational Agencies, Accrediting Bodies state education regulatory bodies agencies and any other applicable Governmental Entities, except (1) approval from the DOE, DOE and (2) approval from any Educational Agency that, under the agency's policies or standards, cannot be obtained or, due to administrative preference, may be obtained solely in interim form prior to Closing or (3) where the failure to receive such consents, approvals, interim approvals, assignments, waivers, orders, authorizations or certificates could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or could not affect adversely the ability of the Surviving Corporation to continue to conduct the business of the Company consistent with the Company's historical ordinary course of business. Notwithstanding anything herein to the contrary, to the extent that Parent receives an interim approval from any applicable Educational Agency or Accrediting Body, such interim approval will not satisfy this condition to closing if such interim approval is issued because there is some substantive issue with respect to issuance of full approval as opposed to being issued because it is such Educational Agency's or Accrediting Body's normal practice or procedure or administrative preference. Parent shall have received written or oral assurances from the Georgia Nonpublic Postsecondary Education Commission, the Accrediting Bureau Of Health Education Schools, the Missouri Coordinating Board for Higher Education, the Pennsylvania State Board of Private Licensed Schools, and the Accrediting Council for Independent Colleges and Schools, confirming that such Educational Agency does not believe that any impediment exists with respect to issuance of the Educational Approvals which Parent requires for its operation of the Company's Schools after the Closing.
(f) Parent shall have received an opinion from Xxxxxx Xxxxxx Xxxxx Xxxxxxxx dated the Closing Date, based upon factual representations of Parent and the Company, to the effect that the Merger will constitute a "reorganization" for federal income tax purposes within the meaning of Section 368(a) of the Code and no gain or loss will be recognized by Parent or its stockholders as a result of the Merger; provided, however, that if Xxxxxx Xxxxxx Xxxxx Xxxxxxxx does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to the Parent if Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A. renders such opinion to Parent.
(g) All actions to be taken by the Company in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to Parent and its counsel.
(g) Parent shall have received a Noncompetition Agreement, in the form attached hereto as Exhibit 7.3(g), from Stevx Xxxxxx.
(h) The Company shall have complied in all respects with that certain Substantive Change Procedure H: the Initiation of a Change of Governance, Ownership, or Control letter from the Commission on Colleges Southern Association of Colleges and Schools, and shall have received approval for such substantive change such that Parent shall be able to operate the Company's schools in the manner that in which they are currently conducted.
(i) Parent and the current governing board of American Intercontinental University ("AIU") shall have agreed upon a new Chief Executive Officer of AIU, which shall not be R. Stevxx Xxxxxx xx any of his Affiliates, family members or other entities in which he has an interest, financial or otherwise. In addition, the governing board of AIU shall not include R. Stevxx Xxxxxx xx any of his Affiliates, family members or other entities in which he has an interest, financial or otherwise.
(j) The Company shall have delivered to Parent within ten (10) business days of the date hereof releases in the form of Exhibit 7.3(j) from each of Jeraxx X. Xxxxxxx, Xx., Xxrk X. Xxxxxxx xxx Arthxx Xxxxxx; xxovided however, in the event the Company shall have delivered such releases after that due date but prior to the Closing and the Parent shall have not terminated this Agreement, then such condition shall be deemed satisfied.
(k) Parent shall have obtained a written statement from DOE providing, without unduly burdensome limitationsto the satisfaction of Parent in its sole discretion, that DOE does not see any impediment to issuing a Temporary Program Participation Agreement with respect TPPA to each Institution AIU following the Closing.
(il) All consents, approvals, interim approvals, orders or authorizations of, or registrations, declarations or filings with, any Governmental Entity or Accrediting Body required by or with respect to Parent shall have obtained reasonable assurance from the Company's landlords that Parent shall be able to remain in possession of those parcels of Rental Real Estate which are described in the Leases set forth in Section 4.4(2)(d), Parent or any (e) and (f) of their respective subsidiaries the Company Disclosure Letter in connection accordance with the execution terms and delivery provisions of this Agreement such Leases and shall be able to operate the Company's Schools or offices, as the consummation of case may be, at the Merger and other transactions contemplated hereby shall have been obtained locations described in the aforementioned Leases in the manner in which such Schools or made, including, without limitation,offices are currently conducted after the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Edutrek Int Inc)
Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other transactions contemplated hereby are further shall be subject to the fulfillment of the following conditions, any of which may be waived only in writing in whole or part by Parent or Merger Sub:
(a) Except for the representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "Material Adverse Impact" (i) the The representations and warranties of the Company set forth in this Agreement that are qualified by materiality or "Material Adverse Effect" shall have been be true and correct on and as of the date of this Agreement and shall be true and correct as of the Effective Time as if made on and as of the Effective Time, and (ii) the representations and warranties of the Company contained in this Agreement that are not so qualified shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Effective Time Closing as if made on and as the date of the Effective Time except for Closing (other than those representations and warranties which that address matters only as of a particular date (which shall remain be true and correct as of such date). The representations and warranties of , except where the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference failure to the Company's Knowledge and "Material Adverse Impact" shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects as (without giving effect to any limitation set forth therein arising from the use of the Effective Time (without taking into account any qualifications words, “material” or exceptions for “materially”, or the Company's Knowledge or "phrase “Material Adverse Impact"Effect”) as if made on and as of the Effective Timewould not, except for such inaccuracies individually or breaches that in the aggregate do not aggregate, (i) have or constitute a Material Adverse Effect on or (ii) materially impair or delay the Company.consummation of the Merger;
(b) The Company shall have performed in all material respects performed all material obligations and complied in all material respects with all material agreements and covenants required by this Agreement of the Company to be performed or complied with by it at or prior to the Effective Time.under this Agreement;
(c) From the date of this Agreement to the Effective Time, there Parent shall not have been any event or development which results in received a Material Adverse Effect upon the business certificate of the Company.
(d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed executed on its behalf by its Chief Executive Officer and or Chief Financial Officer, dated the Closing Date, certifying to the satisfaction of effect that the conditions in Sections 7.2(a) and 7.2(b) have been satisfied;
(d) There shall not have occurred, since September 30, 2006, except as contemplated by this Agreement, as set forth in Sections 7.3(aSection 4.7 of the Disclosure Schedule or as disclosed as a factual matter in the SEC Reports prior to the date hereof (without taking into account any “risk factor” language), (b) and (c).
(e) Parent shall have received all written consents, approvals, interim approvals, assignments, waivers, orders, authorizations any change or other certificates effect that has or would be reasonably necessary anticipated to provide for the continuation in full force and effect of those Material Contracts set forth on Section 7.3(e) of the Parent Disclosure Letter and all of the Existing Permits of the Company and for the Company to consummate the Merger and other transactions contemplated hereby, including, without limitation, the approval of applicable Educational Agencies, Accrediting Bodies and Governmental Entities, except (1) approval from the DOE, (2) approval from any Educational Agency that, under the agency's policies or standards, cannot be obtained or, due to administrative preference, may be obtained solely in interim form prior to Closing or (3) where the failure to receive such consents, approvals, interim approvals, assignments, waivers, orders, authorizations or certificates could nothave, individually or in the aggregateaggregate with other changes and effects, reasonably be expected to have a Material Adverse Effect on Effect; and
(e) Each of the directors of each of the Subsidiaries shall have resigned, effective as of and conditioned upon the Closing, from such director’s position as director of such Subsidiary, absent Parent’s written direction to the Company or could not affect adversely the ability of the Surviving Corporation to continue to conduct the business of the Company consistent with the Company's historical ordinary course of business. Notwithstanding anything herein to the contrary, to the extent that Parent receives an interim approval from any applicable Educational Agency or Accrediting Body, such interim approval will not satisfy this condition to closing if such interim approval is issued because there is some substantive issue with respect to issuance of full approval as opposed to being issued because it is such Educational Agency's or Accrediting Body's normal practice or procedure or administrative preference. Parent shall have received written or oral assurances from the Georgia Nonpublic Postsecondary Education Commission, the Accrediting Bureau Of Health Education Schools, the Missouri Coordinating Board for Higher Education, the Pennsylvania State Board of Private Licensed Schools, and the Accrediting Council for Independent Colleges and Schools, confirming that such Educational Agency does not believe that any impediment exists with respect to issuance of the Educational Approvals which Parent requires for its operation of the Company's Schools after the Closing.
(f) Parent shall have received an opinion from Xxxxxx Xxxxxx Xxxxx Xxxxxxxx dated the Closing Date, based upon factual representations of Parent and the Company, to the effect that the Merger will constitute a "reorganization" for federal income tax purposes within the meaning of Section 368(a) of the Code and no gain or loss will be recognized by Parent or its stockholders as a result of the Merger; provided, however, that if Xxxxxx Xxxxxx Xxxxx Xxxxxxxx does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to the Parent if Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A. renders such opinion to Parent.
(g) All actions to be taken by the Company in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to Parent and its counsel.
(h) Parent shall have obtained a written statement from DOE providing, without unduly burdensome limitations, that DOE does not see any impediment to issuing a Temporary Program Participation Agreement with respect to each Institution following the Closing.
(i) All consents, approvals, interim approvals, orders or authorizations of, or registrations, declarations or filings with, any Governmental Entity or Accrediting Body required by or with respect to the Company, Parent or any of their respective subsidiaries in connection with the execution and delivery of this Agreement or the consummation of the Merger and other transactions contemplated hereby shall have been obtained or made, including, without limitation,
Appears in 1 contract
Samples: Agreement and Plan of Merger (Strategic Distribution Inc)
Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other transactions contemplated hereby are further subject to the fulfillment of the following conditions, any of which may be waived only in writing in whole or part by Parent or Merger Sub:
(a) Except for the representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "Material Adverse Impact" (i) the representations and warranties of the Company set forth in this Agreement that are qualified by materiality or "Material Adverse Effect" shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time as if made on and as of the Effective Time, and (ii) the The representations and warranties of the Company contained in this Agreement that are not so qualified shall have been true and correct in all material respects as of the date herein (which for purposes of this Agreement and paragraph (a) shall be true and correct in all material respects read as though none of the Effective Time as if made on and as of the Effective Time except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date). The representations and warranties of the Company set forth in Section 4.19, Sections 4.20(b), (e) and (f)(2) and Section 4.21(b) that are qualified by reference to the Company's Knowledge and "them contained any Material Adverse Impact" shall have been true and correct in all respects as of the date of this Agreement and Effect or materiality qualification) shall be true and correct in all respects as of the Effective Time (without taking into account any qualifications or exceptions for Closing Date with the Company's Knowledge or "Material Adverse Impact") same effect as if though made on and as of the Closing Date (provided that any representations and warranties made as of a specified date shall be required only to continue at the Effective Time, Time to be true and correct as of such specified date) except (1) for such inaccuracies or breaches that changes specifically contemplated by the terms of this Agreement and (2) where the failure of the representations and warranties to be true and correct in all respects could not in the aggregate do not reasonably be expected to have or constitute a Material Adverse Effect on the Company. No effect will be given to any update or modification of the Company Disclosure Letter made or purported to be made.
(b) The Company shall have in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective TimeClosing Date.
(c) From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect upon the business of the Company.
(d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer and Chief Financial Officer, certifying the satisfaction of the conditions set forth in Sections 7.3(a), ) and (b) and Section 7.2(d).
(c)d) From the date of this Agreement to the Effective Time, there shall not have been any event or development which results in a Material Adverse Effect on the Company.
(e) Parent shall have received all written consents, approvals, interim approvals, assignments, waivers, orders, authorizations or other certificates reasonably necessary to provide for the continuation in full force and effect of those the Material Contracts of the Company set forth on Section 7.3(e) of the Parent Disclosure Letter and all of the Existing Permits 4.4 of the Company and for the Company to consummate the Merger and other transactions contemplated hereby, including, without limitation, the approval of applicable Educational Agencies, Accrediting Bodies and Governmental EntitiesDisclosure Letter, except (1) approval from the DOE, (2) approval from any Educational Agency that, under the agency's policies or standards, cannot be obtained or, due to administrative preference, may be obtained solely in interim form prior to Closing or (3) where the failure to receive such consents, approvals, interim approvals, assignments, waivers, orders, authorizations or certificates so obtain could notnot reasonably be expected, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or could not affect adversely the ability of the Surviving Corporation to continue to conduct the business of the Company consistent with the Company's historical ordinary course of business. Notwithstanding anything herein to the contrary, to the extent that Parent receives an interim approval from any applicable Educational Agency or Accrediting Body, such interim approval will not satisfy this condition to closing if such interim approval is issued because there is some substantive issue with respect to issuance of full approval as opposed to being issued because it is such Educational Agency's or Accrediting Body's normal practice or procedure or administrative preference. Parent shall have received written or oral assurances from the Georgia Nonpublic Postsecondary Education Commission, the Accrediting Bureau Of Health Education Schools, the Missouri Coordinating Board for Higher Education, the Pennsylvania State Board of Private Licensed Schools, and the Accrediting Council for Independent Colleges and Schools, confirming that such Educational Agency does not believe that any impediment exists with respect to issuance of the Educational Approvals which Parent requires for its operation of the Company's Schools after the Closing.
(f) Parent shall have received an opinion all written consents, assignments, waivers, authorizations or other certificates from Xxxxxx Xxxxxx Xxxxx Xxxxxxxx dated state education regulatory bodies and any other applicable Governmental Entities set forth in Annex A to this Agreement to the Closing Date, based upon factual representations of Parent extent necessary to consummate the Merger and the Company, other transactions contemplated hereby and by the Stock Purchase Agreement.
(g) All conditions precedent to the effect that the Merger will constitute a "reorganization" for federal income tax purposes within the meaning of Escrow Release set forth in Section 368(a2.4(b)(i) of the Code and no gain Stock Purchase Agreement shall have been satisfied or loss will be recognized waived by Parent or its stockholders as a result of the Merger; provided, however, that if Xxxxxx Xxxxxx Xxxxx Xxxxxxxx does not render such opinion, this condition shall nonetheless be deemed to be satisfied with respect to the Parent if Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A. renders such opinion to Parent.
(gh) The Company shall have, if requested by Parent, completed the sale, divestiture, donation or other disposition of the Excluded Operations as contemplated by Section 6.23 of this Agreement.
(i) All actions to be taken by the Company in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to Parent and its counsel.
(h) Parent shall have obtained a written statement from DOE providing, without unduly burdensome limitations, that DOE does not see any impediment to issuing a Temporary Program Participation Agreement with respect to each Institution following the Closing.
(i) All consents, approvals, interim approvals, orders or authorizations of, or registrations, declarations or filings with, any Governmental Entity or Accrediting Body required by or with respect to the Company, Parent or any of their respective subsidiaries in connection with the execution and delivery of this Agreement or the consummation of the Merger and other transactions contemplated hereby shall have been obtained or made, including, without limitation,
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