Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) at or prior to the Closing Date of the following conditions: (a) (i) The representations and warranties of Company set forth in ARTICLE 4 shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent any inaccuracies in such representations and warranties, individually or in the aggregate, would not have a Material Adverse Effect on Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present), and (ii) the representations and warranties set forth in Sections 4.2 and 4.3 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made at and as of such time; provided that with respect to clauses (i) and (ii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) and (ii), as applicable) only as of such date or period; (b) Company shall have performed or complied in all material respects with all of its obligations and covenants required to be performed by Company under this Agreement at or prior to the Closing Date; (c) Company shall have delivered to Parent a certificate executed on its behalf by its Chief Executive Offer or Chief Financial Officer to the effect that each of the conditions specified in Sections 6.3(a) and (b) is satisfied in all respects; (d) Since the date of this Agreement, there shall not have been any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Material Adverse Effect on Company; (e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and (f) Company shall have delivered to Parent the Target Closing Certificate.
Appears in 3 contracts
Samples: Merger Agreement (Perfumania Holdings, Inc.), Merger Agreement (Perfumania Holdings, Inc.), Merger Agreement (Parlux Fragrances Inc)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect the Merger shall also be subject to the satisfaction (or waiver, if permissible under applicable Law) at or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent:
(a) (iw) The representations and warranties of the Company set forth in ARTICLE 4 Section 3.1, Section 3.2(c), Section 3.3, Section 3.19 and Section 3.20 shall be true and correct correct, in all material respects, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent any inaccuracies in such representations and warranties, individually or in the aggregate, would not have a Material Adverse Effect on Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present)Agreement, and (ii) the representations and warranties set forth in Sections 4.2 and 4.3 shall be true and correct correct, in all material respects as of the date of this Agreement respects, at and as of the Closing Date as if made at on and as of such time; provided that with respect to clauses Closing Date, (ix) the representations and warranties of the Company set forth in Sections 3.2(a), (b) and (iid) above, representations shall have been true and warranties that are made correct in all but de minimis respects as of a particular the date or period of the Agreement, and shall be true and correct in all but de minimis respects at and as of the Closing Date as if made on and as of such Closing Date, (in y) the manner representations and warranties of the Company set forth in Section 3.9(a) shall have been true and correct in all respects as of the date of the Agreement, and shall be true and correct in all respects at and as of the Closing Date as if made on and as of such Closing Date and (z) all other representations and warranties of the Company set forth in Article III shall have been true and correct in all respects as of the date of the Agreement, and shall be true and correct in all respects at and as of the Closing Date as if made on and as of such Closing Date except where the failure of such other representations and warranties to not be so true and correct would not result, individually or in the aggregate, in a Company Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties pursuant to clauses (iw), (x), (y) or (z) above, (A) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded and (ii), B) the truth and correctness of those representations or warranties that address matters only as applicable) of a specific date shall be measured only as of such date or perioddate);
(b) the Company shall have performed or complied in all material respects with all of its covenants and obligations and covenants that the Company is required to be performed by Company comply with or to perform under this the Agreement at or prior to the Closing DateClosing;
(c) Company Parent shall have delivered to Parent received a certificate executed signed on its behalf of the Company by its the Chief Executive Offer Officer or Chief Financial Officer of the Company to the effect that each of the conditions specified in Sections 6.3(aclauses (a) and (b) is satisfied in all respects;above have been satisfied; and
(d) Since since the date of this the Agreement, there shall not have been occurred any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Company Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company shall have delivered to Parent the Target Closing CertificateEffect.
Appears in 2 contracts
Samples: Merger Agreement (Vascular Solutions Inc), Merger Agreement (Teleflex Inc)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect consummate the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) at on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent and Merger Sub, to the extent permitted by applicable Law:
(a) (i) The the representations and warranties of the Company set forth contained in ARTICLE 4 (i) this Agreement (other than in Section 4.2(a) and Section 4.8(a)) shall be true and correct as of the date of this Agreement and as of the Closing Date Date, as though if made on and as of the Closing Date, such time (except to the extent any inaccuracies expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warrantieswarranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in any individual such representation or warranty) would not reasonably be expected, individually or in the aggregate, would not to have a Company Material Adverse Effect on Company (provided thatEffect, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present), and (ii) the representations and warranties set forth in Sections 4.2 and 4.3 Section 4.2(a) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date Date, as if made at and as of such time; provided that with respect time (except to clauses (i) and (ii) above, representations and warranties that are the extent expressly made as of a particular date or period an earlier date, in which case as of such date), except for any Immaterial Inaccuracies, and (iii) Section 4.8(a) shall be true and correct (in as of the manner set forth in clauses (i) date of this Agreement and (ii)as of the Closing Date, as applicable) only if made as of such date or periodtime;
(b) the Company shall have performed or complied in all material respects with all of its obligations and or covenants under the Agreement required to be performed or complied with by Company it under this the Agreement at or prior to the Closing DateEffective time;
(c) prior to the Effective Time, the Company shall have delivered deliver to Parent a certificate executed certificate, signed on its behalf of the Company by its Chief Executive Offer chief executive officer or Chief Financial Officer chief financial officer that the conditions set forth in clauses (a), (b) and (c) above shall have occurred and be continuing as of the Effective Time; and
(d) Parent shall have received a written Tax opinion from Xxxxxx & Xxxxxxx LLP, counsel to Parent (or, if Xxxxxx & Xxxxxxx LLP is unable to deliver such opinion, Xxxxxxxx & Xxxxx LLP), dated as of the Closing Date, in form and substance reasonably satisfactory to Parent and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Integrated Mergers, taken together, will qualify for the Intended Tax Treatment (the “Parent Tax Opinion”). Xxxxxx & Xxxxxxx LLP or Xxxxxxxx & Xxxxx LLP, as applicable, shall be entitled to rely upon customary assumptions, representations, warranties, and covenants from each of the conditions specified Company, Parent, Merger Sub and LLC Sub (or any other relevant parties), in Sections 6.3(a) each case, in form and (b) is satisfied substance reasonably satisfactory to Xxxxxx & Xxxxxxx LLP or Xxxxxxxx & Xxxxx LLP, as applicable, including Tax representation letters in all respects;
(d) Since substantially the forms set forth in Exhibit C hereto and Exhibit D hereto, with any modifications to such representation letters that are reasonably requested by Xxxxxx & Xxxxxxx LLP or Xxxxxxxx & Xxxxx LLP, as applicable. Each such representation letter shall be dated as of the date of this Agreement, there shall not have been any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company shall have delivered to Parent the Target Closing CertificateTax Opinion.
Appears in 2 contracts
Samples: Merger Agreement (Amplify Energy Corp), Merger Agreement (Midstates Petroleum Company, Inc.)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) at or prior to the Closing Date Effective Time of the following conditions:
(a) (i) The representations and warranties of Company set forth in ARTICLE 4 Article 2 hereof shall be true and correct as of the date of this Agreement and in all material respects as of the Closing Date as though made on and as of the Closing Date, except to the extent any inaccuracies in such representations and warranties, individually or in the aggregate, would not have a Material Adverse Effect on Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present), and (ii) the representations and warranties set forth in Sections 4.2 and 4.3 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made at and as of such time; provided that with respect to clauses (i) and (ii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) and (ii), as applicable) only as of such date or period;.
(b) Company shall have performed or complied in all material respects with all of its obligations the covenants and covenants agreements required to be performed by Company under this Agreement at or prior to the Closing DateClosing;
(c) Company shall have delivered to Parent a certificate executed on its behalf by its Chief Executive Offer or Chief Financial Officer to the effect that each of the conditions specified in Sections 6.3(a) and (b) is satisfied in all respects;
(d) Since the date of this Agreement, there shall will not have been occurred or arisen any Event thatchange, effect, fact, condition, circumstance, occurrence, state of facts or development, nor will there exist any change, effect, fact, condition, circumstance, occurrence, state of facts or development, which, individually or in the aggregate, is having have resulted, or would reasonably be expected to have result, in a Company Material Adverse Effect on CompanyEffect;
(d) No action or proceeding by or before any Governmental Authority shall be pending wherein an unfavorable judgment, decree or order would prevent the consummation of the transactions contemplated hereby or cause such transactions to be rescinded, and no judgment, decree, order or Applicable Law that would prohibit the consummation of the Closing shall be in effect;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company shall have delivered to Parent the Target Closing Certificatefollowing deliverables:
(i) a certificate of Company’s secretary certifying (x) resolutions of the board of directors of Company and resolutions of the equityholders of Company approving this Agreement and the transactions contemplated hereby and (y) the bylaws of Company, as amended and/or restated;
(ii) a copy of Company’s Certificate of Incorporation, certified as of a recent date by the Secretary of State of Delaware;
(iii) a certificate certifying to the effect that no interest in the Company is a U.S. real property interest (such certificate in the form required by Treasury Regulation Section 1.897-2(h) and 1.1445-2(c)); and
(iv) a certificate of good standing or comparable certificate for Company as of a recent date from the Secretary of State of the State of Delaware; and
(f) The Contract Manufacturing Agreement shall be in full force and effect.
(g) The Non-Competition and Non-Solicitation Agreement shall be in full force and effect with Pioneer and Nxxxxx Xxxxxxx.
(h) The Indemnity Agreement shall be in full force and effect with Pioneer.
Appears in 2 contracts
Samples: Merger Agreement (Pioneer Power Solutions, Inc.), Merger Agreement (Cleanspark, Inc.)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations obligation of each of Parent and Merger Sub to effect the Merger shall be is subject to satisfaction or waiver (to the satisfaction (or waiver, if permissible under extent permitted by applicable Lawlaw) at or prior to the Closing Date Effective Time of each of the following conditions:
(a) (i) The Each of the representations and warranties of the Company set forth in ARTICLE 4 this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true and correct both as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing DateEffective Time, except to the extent any inaccuracies in such representations and warranties, individually or in the aggregate, would not have a Material Adverse Effect on Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present), and (ii) the representations and warranties set forth in Sections 4.2 and 4.3 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made at and as of such time; provided time (except to the extent that with respect to clauses (i) and (ii) above, such representations and warranties that are made speak as of a particular date or period another date, in which case such representations and warranties shall be true and correct (in the manner set forth in clauses (i) and (ii), as applicable) only as of such date other date), except where the failure of such representations and warranties to be true and correct would not, individually or period;in the aggregate, have a Company Material Adverse Effect.
(b) The Company shall have performed or complied in all material respects with all of its obligations and covenants required to be performed by Company under this Agreement it at or prior to the Closing Date;Effective Time under this Agreement.
(c) Company Parent shall have delivered to Parent received a certificate executed on its behalf certificate, dated as of the Effective Time, signed by its Chief Executive Offer the chief executive officer or Chief Financial Officer chief financial officer of the Company, to the effect that each of the conditions specified set forth in Sections 6.3(aSection 8.3(a), Section 8.3(b) and (bSection 8.3(i) is satisfied in all respects;have been satisfied.
(d) There shall not be pending any action or proceeding by any Governmental Entity that has reasonable likelihood of success seeking (x) to make illegal or to prohibit the consummation of the Merger, (y) to restrain or prohibit Parent's (including its affiliates') ownership or operation of all or any material portion of the business or assets of the Surviving Corporation or the Company, or to compel Parent or any of its affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation or the Company or (z) to impose or confirm material limitations on the ability of Parent or any of its affiliates to effectively control the business or operations of the Surviving Corporation or the Company, and no court, arbitrator or Governmental Entity shall have issued any judgment, order, decree or injunction, and there shall not be any statute, rule or regulation, that is likely, directly or indirectly, to result in any of the consequences referred to in the preceding clauses (x) through (z); provided, however, that Parent and the Company shall use their reasonable efforts to have any such judgment, order, decree or injunction vacated.
(e) The Shareholder's Agreement shall be in full force and effect and the Shareholder shall be in compliance with the terms thereof.
(f) The employment agreement between Michael H. Dunn and Parent, executed and delivered on the date hxxxxx, xxxxx xx in full force and effect, with effect as of the Effective Time; Mr. Dunn shall be serving as the Company's chief executive officxx; xxx Mr. Dunn shall not be subject to any disability or other conditixx xxxx would materially impair the fulfillment of his responsibilities as chief executive officer of the Surviving Corporation in a manner and to an extent consistent with the performance of his duties as chief executive officer of the Company prior to the date of this Agreement and after December 31, 2000.
(g) Each of the employment agreements listed in Section 8.3(g) of the Company Disclosure Schedule, as amended on the date hereof, shall be in full force and effect.
(h) The Company shall have provided (or caused to be provided) to Parent a duly executed certificate, in form and substance reasonably satisfactory to Parent, to the effect that Parent is not required to withhold from any of the Merger Consideration under section 1445 of the Code (a "FIRPTA Certificate"). Notwithstanding any provision of this Agreement to the contrary, if Parent does not receive a FIRPTA Certificate prior to the Closing, Parent may waive the condition set forth in this Section 8.3(h) and withhold from the Merger Consideration in accordance with the requirements of section 1445 of the Code.
(i) All material authorizations, consents and approvals required to be made or obtained prior to the Effective Time by each party hereto from any Governmental Entity or other Person in connection with the execution and delivery of this Agreement and the consummation of the Transactions shall have been made or obtained.
(j) Since the date of this Agreement, there shall not have been occurred any Event thatchange, event, occurrence, development or circumstance which, individually or in the aggregate, is having has had, or would reasonably be expected to have have, a Company Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company shall have delivered to Parent the Target Closing CertificateEffect.
Appears in 1 contract
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each Solely if the Offer Termination shall have occurred, then the obligation of Parent and Merger Sub to effect the Merger shall be is subject to the satisfaction (or waiver, if permissible under applicable Law) waiver by Parent at or prior to the Closing Date Effective Time of the following conditions:
(a) (i) The the representations and warranties of the Company set forth in ARTICLE 4 Sections 4.1, 4.2, 4.4, 4.5(a)(i) and (iii), 4.9(b), 4.20, 4.21, 4.22, 4.24 and 4.25 shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent any inaccuracies in such representations and warranties, individually or in the aggregate, would not have a Material Adverse Effect on Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present), and (ii) the representations and warranties set forth in Sections 4.2 and 4.3 shall be true and correct in all material respects as of the date of this Agreement hereof and as of the Closing Date as if made at as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such time; provided that with respect to clauses (iearlier date) and (ii) above, each of the remaining representations and warranties that are made as of a particular date or period the Company set forth in this Agreement shall be true and correct (correct, without giving effect to any materiality or “Material Adverse Effect” qualifications or exceptions contained in such representations and warranties, except as, individually and in the manner set forth aggregate, would not reasonably be expected to have a Material Adverse Effect, in clauses (i) and (ii)each case, as applicable) only of the date hereof and as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such date or periodearlier date);
(b) the Company shall have performed or and complied in all material respects with all each of its obligations obligations, covenants and covenants required to be performed by Company under agreements contained in this Agreement at or prior to the Closing DateAgreement;
(c) the Company shall have delivered to each of Parent and Merger Sub a certificate executed on its behalf by its Chief Executive Offer or Chief Financial Officer of an executive officer of the Company, dated as of the Closing Date, to the effect that each of set forth in the conditions specified in foregoing Sections 6.3(a7.2(a) and (b) is satisfied in all respects;); and
(d) Since since the date of this Agreementhereof, there shall not have been occurred any Event event, change, development, circumstance, occurrence, effect, condition or state of facts that, individually or in the aggregate, is having has had or would reasonably be expected to have a Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company shall have delivered to Parent the Target Closing CertificateEffect.
Appears in 1 contract
Samples: Merger Agreement (CKX, Inc.)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect consummate the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) at on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent and Merger Sub, to the extent permitted by applicable Law:
(a) (i) The the representations and warranties of the Company set forth in ARTICLE 4 this Agreement which are qualified by a “Company Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made on at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement which are not qualified by a “Company Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to the extent any inaccuracies in such representations be true and warrantiescorrect as would not, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect on Company (provided Effect; provided, however, that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present), and (ii) the representations and warranties set forth in Sections 4.2 and 4.3 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made at and as of such time; provided that with respect to clauses (i) and (ii) abovehereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) and or (ii), as applicable) ), only as of such date or period;; and provided, further (A) the representations and warranties of the Company set forth in the first sentence of Section 3.1(a), the first sentence of Section 3.1(c), Section 3.2(f), Section 3.3(a), Section 3.4(b)(ii), Section 3.21, Section 3.22 and Section 3.24 shall be true and correct in all material respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); (B) the representations and warranties of the Company set forth in Section 3.2(a) and Section 3.2(c) (in each case with respect to the Company and not the Company Subsidiaries) shall be true and correct other than for de minimis inaccuracies as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); and (C) the representations and warranties of the Company set forth in Section 3.8(a) shall be true and correct in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date.
(b) The Company shall have performed or complied in all material respects with all of its obligations the obligations, covenants and covenants agreements required to be performed or complied with by Company it under this the Agreement at or prior to the Closing Date;Effective Time.
(c) Company Parent shall have delivered to Parent received a certificate executed on its behalf certificate, dated as of the Closing Date and signed by its Chief Executive Offer or Chief Financial Officer the Company’s chief executive officer and chief financial officer, certifying to the effect that each of the conditions specified set forth in Sections 6.3(aclauses (a) and (b) is satisfied in all respects;
(d) Since the date of this Agreement, there shall not immediately above have been any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company shall have delivered to Parent the Target Closing Certificatesatisfied.
Appears in 1 contract
Samples: Merger Agreement (Encana Corp)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect consummate the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) at on or prior to the Closing Date of each of the following conditions:, any and all of which may be waived in whole or in part by Parent and Merger Sub, to the extent permitted by applicable law.
(a) (i) The representations and warranties of the Company set forth in ARTICLE Article 4 shall be true and correct as of the date of this Agreement and as of the Closing Date as though if made on and as of the Closing DateEffective Time (other than representations and warranties that speak only as of a specified date; which shall be true and correct as of such specified date), except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect to the extent any inaccuracies Company qualifications contained in such representations and warrantiesrepresentation or warranty), individually or in the aggregate, would have not have resulted in and are not reasonably likely to result in a Material Adverse Effect on Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present), and (ii) to the representations and warranties set forth in Sections 4.2 and 4.3 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made at and as of such time; provided that with respect to clauses (i) and (ii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) and (ii), as applicable) only as of such date or period;Company.
(b) The Company shall have performed or complied in all material respects with all of its obligations and covenants required to be performed by Company under this Agreement at or prior to the Closing Date;Agreement.
(c) Company At any time after the date of this Agreement there shall not have occurred any Material Adverse Effect to the Company.
(d) Parent shall have delivered to Parent a received an officer's certificate duly executed on its behalf by its each of the Chief Executive Offer or Officer and Chief Financial Officer of the Company to the effect that each of the conditions specified set forth in Sections 6.3(a7.2(a), 7.2(b) and (b7.2(c) is satisfied in all respects;
(d) Since the date of this Agreement, there shall not have been any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Material Adverse Effect on Company;satisfied.
(e) Holders Parent shall have received an opinion of shares of Company Common Stock representing Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, in excess of 7.5% form and substance reasonably satisfactory to Parent, dated as of the outstanding shares of Company Common Stock shall not have exercised (ordate during which the Effective Time occurs, if exercisedsubstantially to the effect that, shall not have withdrawn such exercise by the close of business on the day after basis of facts, representations and assumptions set forth in such opinion, for United States federal income tax purposes, the day Merger will constitute a "reorganization" within the meaning of section 368(a) of the Company Shareholders Meeting) rights Code. In rendering such opinion, Xxxxxxx, Phleger & Xxxxxxxx LLP shall receive and may rely upon representations contained in certificates of dissent in connection with the Merger; andCompany, Parent and Merger Sub.
(f) The Company shall have provided the certification prescribed by Section 1445 of the Code and the Treasury Regulations thereunder to Parent that the Company has not been a "United States real property holding corporation" within the meaning of Section 897(a)(2) during the five-year period prescribed therein.
(g) The Company shall have delivered to Parent the Target Closing CertificateRule 145 Affiliate Agreements obtained by the Company pursuant to Section 6.16.
(h) The Company shall have effected the Company Rights Plan Amendment.
(i) All consents of any Governmental Entity or third party set forth in Schedule 7.2(i) to this Agreement shall have been obtained by the Company.
Appears in 1 contract
Samples: Merger Agreement (Valueclick Inc/Ca)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect the Merger shall be are subject to the satisfaction (or waiversatisfaction, if permissible under applicable Law) at or prior to the Closing Date Effective Time, of the following conditions:additional conditions (any of which may be waived by Parent and Merger Sub, in whole or in part, at any time prior to the Effective Time):
(a) (i) The representations and warranties of the Company set forth contained herein (other than the representations and warranties in ARTICLE 4 Section 4.2, Section 4.3 and Section 4.17(d)) shall be true and correct as of the Effective Time with the same effect as though made as of the Effective Time, except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and or some other date will be determined as of the Closing Date as though made on such date and as (z) where any such failure of the Closing Date, except to the extent any inaccuracies in such representations and warranties, individually or warranties in the aggregate, aggregate to be true and correct would not reasonably be expected to have a Company Material Adverse Effect on (without giving effect to any “materiality” or “Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not presentEffect” qualifications contained therein), ; and (ii) the representations and warranties of the Company set forth in Sections 4.2 Section 4.2, Section 4.3 and 4.3 Section 4.17(d) shall be true and correct in all material respects both when made and at and as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, and (y) the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and as of the Closing Date as if made at and or some other date will be determined as of such timedate; provided that with respect and Parent shall have received a certificate of the Chief Executive Officer of the Company to clauses (i) and (ii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) and (ii), as applicable) only as of such date or period;foregoing effect.
(b) The Company shall have performed or and complied with in all material respects with all of its obligations and covenants required under this Agreement to be performed by Company under this Agreement at or complied with on or prior to the Closing Date;Effective Time, and Parent shall have received a certificate of the Chief Executive Officer of the Company to the foregoing effect.
(c) Company shall have delivered to Parent a certificate executed on its behalf by its Chief Executive Offer or Chief Financial Officer to the effect that each of the conditions specified in Sections 6.3(a) and (b) is satisfied in all respects;
(d) Since the date of this Agreement, there shall not have been occurred and be continuing any Event Company Material Adverse Effect, and no event shall have occurred or circumstance shall exist that, individually in combination with any other events or in the aggregatecircumstances, is having or would reasonably be expected to have or result in a Company Material Adverse Effect on Company;Effect.
(d) Each approval required by the NPSC that is listed in Section 4.4(a)(ii) of the Company Disclosure Letter shall have been obtained.
(e) Holders of shares of Company Common Stock representing in excess of 7.5% Each consent of the outstanding shares of Company Common Stock shall not have exercised (orFCC, if exercisedthe IUB, shall not have withdrawn such exercise by the close of business on MPUC, the day after MPSC and the day NPSC listed in Section 4.4(a)(ii) of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company Disclosure Letter shall have delivered to been issued without any condition that precludes Parent from fulfilling its obligations under Section 5.10 of the Target Closing CertificateParent Credit Agreement.
Appears in 1 contract
Samples: Merger Agreement (Iowa Telecommunications Services Inc)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect the Merger shall be are subject to the satisfaction (or waiversatisfaction, if permissible under applicable Law) at or prior to the Closing Date Effective Time, of the following conditions:additional conditions (any of which may be waived by Parent and Merger Sub, in whole or in part, at any time prior to the Effective Time):
(a) (i) The representations and warranties of the Company set forth contained herein (other than the representations and warranties in ARTICLE 4 Section 5.2(a), Section 5.3, Section 5.4(a)(i), Section 5.6(a)(2) and Section 5.22) shall be true and correct when made and at and as of the Effective Time with the same effect as though made as of the Effective Time, except (x) for changes expressly permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and or some other date will be determined as of the Closing Date as though made on such date, and as (z) where any such failure of the Closing Date, except to the extent any inaccuracies in such representations and warranties, individually or warranties in the aggregate, aggregate to be true and correct does not and would not have constitute a Company Material Adverse Effect on (without giving effect to any "materiality" or "Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not presentEffect" qualifications contained therein), ; and (ii) the representations and warranties of the Company set forth in Sections 4.2 (1) Section 5.3, Section 5.4(a)(i) and 4.3 Section 5.22 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made at and as of such time; provided that with respect to clauses (i) respects, and (ii2) above, representations and warranties that are made as of a particular date or period Section 5.6(2) shall be true and correct in all respects, in each case of (in 1) and (2), both when made and at and as of the manner Effective Time, and (iii) the representations and warranties of the Company set forth in clauses (iSection 5.2(a) shall be true and (ii), as applicable) only correct in all respects both when made and at and as of the Effective Time except as expressly permitted pursuant to Section 7.1(f) of the Company Disclosure Letter and except for such date inaccuracies that in the aggregate would not result in an aggregate increase in the consideration paid pursuant to Article IV in excess of $200,000 (such increase determined taking into account any surrender of shares or period;payment or reimbursement made to Parent by any stockholder of the Company prior to the Effective Time in order to cure such failure of the condition in this clause (iii) to be satisfied); and Parent shall have received a certificate executed by a senior executive officer of the Company on its behalf to the foregoing effect.
(b) The Company shall have performed or and complied with in all material respects with all of its obligations and covenants required under this Agreement to be performed by Company under this Agreement at or complied with on or prior to the Closing Date;Effective Time, and Parent shall have received a certificate executed by a senior executive officer of the Company to the foregoing effect.
(c) Company shall have delivered to Parent a certificate executed on its behalf by its Chief Executive Offer or Chief Financial Officer to the effect that each of the conditions specified in Sections 6.3(a) and (b) is satisfied in all respects;
(d) Since the date of this Agreement, there shall not have been occurred and be continuing any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Company Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company shall have delivered to Parent the Target Closing CertificateEffect.
Appears in 1 contract
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect consummate the Merger shall be are further subject to the satisfaction or (or waiver, if permissible under to the extent permitted by applicable Law) at waiver by Parent on or prior to the Closing Date Effective Time of the following conditions:
(a) (i) The each of the representations and warranties of the Company set forth contained in ARTICLE 4 Section 4.4 (Authority; Execution and Delivery; Enforceability) and the first sentence of Section 4.8 (Absence of Certain Changes or Events) shall be true and correct in all respects as of the date of this Agreement made and as of the Closing Date Effective Time as though made on and as of the Closing Date, Effective Time (except to the extent any inaccuracies in such that those representations and warranties, individually or in the aggregate, would not have warranties which address matters only as of a Material Adverse Effect on Company (provided that, for purposes particular date need only be true and correct as of this Section 6.3(a)(isuch date), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present), and (ii) each of the representations and warranties set forth of the Company contained in Sections 4.2 Section 4.3(a) (Capital Structure) shall be accurate except for de minimis inaccuracies as of the date made and 4.3 as of the Effective Time as though made on and as of the Effective Time (except those representations and warranties which address matters only as of a particular date need only be accurate as of such date), (iii) each of the representations and warranties contained in Section 4.1 (Organization, Standing and Power), Section 4.3(b) (Capital Structure), Section 4.19 (Anti-Takeover Provisions), Section 4.25 (Brokers' Fees and Expenses), and Section 4.30 (Indebtedness) shall be true and correct in all material respects as of the date of this Agreement made and as of the Closing Date Effective Time as if though made at on and as of such time; provided the Effective Time (except that with respect to clauses (i) and (ii) above, those representations and warranties that are made which address matters only as of a particular date or period need only be true and correct as of such date), and (iv) any other representations and warranties of the Company contained in this Agreement shall be true and correct as of the date made and as of the Effective Time (in without giving effect to any references to any "Company Material Adverse Effect" or other "materiality" qualifications) as though made on and as of the manner set forth in clauses Effective Time (i) except that those representations and (ii), as applicable) warranties which address matters only as of a particular date need only be true and correct as of such date date) except where failure to be so true and correct would not, individually or periodin the aggregate, have a Company Material Adverse Effect;
(b) the Company shall have complied with or performed or complied in all material respects with all of its obligations each covenant and covenants obligation that the Company is required to be performed by Company under this Agreement comply with or to perform at or prior to the Closing DateEffective Time;
(c) the Company shall have delivered to Parent a certificate executed on its behalf signed by its Chief Executive Offer or Chief Financial Officer an executive officer of the Company and dated as of the Effective Time to the effect that each of the conditions specified in Sections 6.3(aSection 7.2(a) and (bSection 7.2(b) is satisfied in all respectshave been satisfied;
(d) Since this Agreement shall not have been validly terminated in accordance with Section 8;
(e) since the date of this Agreement, no Company Material Adverse Effect shall have occurred;
(f) the Company shall have obtained and delivered to Parent the Required Consents and the Governmental Approval(s) listed on Section 6.4(a) of the Company Disclosure Schedules;
(g) all statutes of limitations set forth in the regulations under the Investment Canada Act shall have expired and Parent shall have received a receipt from the Director under the Investment Canada pursuant to Section 13 of the Investment Canada Act, certifying the date on which (i) the complete notice given under Section 12 was received by the Director under the Investment Canada Act; and (ii) advising Parent that the transactions contemplated by this Agreement are not subject to net benefit review;
(h) the Company shall have received and provided to Parent written acknowledgement from each Person to whom Company Transaction Expenses are required to be paid the entire amount of Company Transactions Expenses payable to such Person;
(i) there shall not have been any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock Dissenting Shares representing in excess of 7.5more than 4% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; andStock;
(fj) the Company shall have delivered to Parent an affidavit by an officer of the Target Company in accordance with Treasury Regulation Section 1.1445-2(c)(3) certifying that the Company has not been a United States real property holding corporation (as the term is defined in the Code and the Treasury Regulations) at any time during the five-year period ending on the Closing CertificateDate, along with a notice prepared in accordance with Treasury Regulation Section 1.897-2(h) to be mailed by Parent (together with copies of the affidavit described above) to the Internal Revenue Service in accordance with Treasury Regulation Section 1.897-2(h); and
(k) the Amended and Restated Employment Agreements shall still be in full force and effect.
Appears in 1 contract
Samples: Merger Agreement (Counterpath Corp)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations obligation of each of Parent and Merger Sub to effect the Merger shall be is subject to satisfaction or waiver (to the satisfaction (or waiver, if permissible under extent permitted by applicable Lawlaw) at or prior to the Closing Date Effective Time of each of the following conditions:
(a) (i) The representations and warranties of the Company set forth in ARTICLE 4 herein (i) that are qualified as to materiality shall be true and correct both when made and at and as of the Effective Time, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), and (ii) that are not qualified as to materiality shall be true and correct both when made and at and as of the Effective Time, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date) in all material respects; PROVIDED, HOWEVER, that, for purposes of this Section 8.3 as it relates to the representations and warranties set forth in Section 4.21, (A) neither the Company nor any Company subsidiary shall be deemed to have knowledge of any matter to the extent identified in any environmental site assessment of any facility of the Company or Company Subsidiary conducted by Parent's representatives prior to the Effective Time unless such matter was known to the Company or any Company Subsidiary as of the date of this Agreement and (B) any events occurring after the date of this Agreement and prior to the Effective Time of which the Company or any Company Subsidiary has knowledge shall not constitute a breach or inaccuracy of such representations and warranties unless the aggregate amount of all costs of remediation associated with all such events could reasonably be expected to exceed $1 million, in which case, this condition shall be deemed to have not been satisfied. If this condition is deemed to have not been satisfied as a result of the foregoing clause (B), Parent's sole remedy shall be as provided in this Section 8.3.
(b) The Company shall have performed in all material respects all obligations required to be performed by it at or prior to the Effective Time under this Agreement.
(c) Parent shall have received a certificate, dated as of the Closing Date as though made on and as Effective Time, signed by the chief executive officer or chief financial officer of the Closing DateCompany, except to the extent effect that the conditions set forth in Section 8.3(a) and Section 8.3(b) have been satisfied.
(d) There shall not be pending any inaccuracies action or proceeding by any Governmental Entity or any action or proceeding by any other Person before any court or Governmental Entity seeking (i) to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger or the other transactions contemplated by this Agreement or to obtain any damages or other remedy in such representations connection with the Merger or the transactions contemplated by this Agreement, (ii) to restrain or prohibit Parent's (including its affiliates') ownership or operation of all or any portion of the business or assets of the Surviving Corporation or the Company, or to compel Parent or any of its affiliates to dispose of or hold separate all or any portion of the business or assets of the Surviving Corporation or the Company or (iii) to impose or confirm limitations on the ability of Parent or any of its affiliates to effectively control the business or operations of the Surviving Corporation or the Company, and warrantiesno court, individually arbitrator or Governmental Entity shall have issued any judgment, order, decree or injunction, and there shall not be any statute, rule or regulation, that is likely, directly or indirectly, to result in any of the consequences referred to in the aggregatepreceding clauses (i) through (iii); PROVIDED, would HOWEVER, that Parent and the Company shall use their reasonable best efforts to have any such judgment, order, decree or injunction vacated.
(e) (i) the Company shall have mailed or caused to be mailed, in accordance with the requirements of the Senior Secured Notes Indenture, a notice of redemption to the holders of the Senior Secured Notes stating that the Senior Secured Notes are being redeemed pursuant to Section 3.07(a) of the Senior Secured Notes Indenture, the Senior Secured Notes Indenture shall have been satisfied and discharged in accordance with the requirements of Article 12 of the Senior Secured Notes Indenture (including the deposit with the trustee under the Senior Secured Notes Indenture of cash in U.S. dollars and/or noncallable government securities in an amount sufficient to pay the redemption price and interest on the Senior Secured Notes through the redemption date provided by Parent), and the Senior Secured Notes shall not have a Material Adverse Effect on Company (provided that, for purposes of this Section 6.3(a)(i), any representation been revived or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present)reinstated, and (ii) the representations and warranties Company shall have mailed or caused to be mailed, in accordance with the requirements of the 2007 Notes Indenture, a notice of redemption to the holders of the 2007 Notes stating that the 2007 Notes are being redeemed pursuant to Section 3.07(a) of the 2007 Notes Indenture, the 2007 Notes shall have been defeased in accordance with the requirements for "Covenant Defeasance" (as defined in the 2007 Notes Indenture) set forth in Sections 4.2 Section 8.03 and 4.3 shall be true and correct in all material respects as Article VIII of the 2007 Notes Indenture or the 2007 Notes Indenture shall have been satisfied and discharged on terms and conditions satisfactory to Parent in its sole and absolute discretion (including the deposit with the trustee under the 2007 Notes Indenture of cash in U.S. dollars and/or noncallable government securities in an amount sufficient to pay the redemption price and interest on the 2007 Notes through the redemption date of this Agreement provided by Parent), and as the 2007 Notes shall not have been revived or reinstated.
(f) All the Newcup Notes shall have been repurchased or redeemed by Newcup with funds provided to the Company by Parent, Newcup shall not own any 2008 Notes, Newcup and Sweetheart Holdings, Inc. shall each be wholly-owned subsidiaries of the Closing Date Company, and the Company and each Company Subsidiary shall have been released from their obligations under the Newcup Arrangements as if made at and as of such time; provided that with respect to clauses (i) and (ii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) and (ii), as applicable) only as of such date or period;Section 7.10.
(bg) Company The Subordinated Note shall have performed been repurchased or complied in all material respects redeemed by the Company with all of its obligations funds provided by Parent, and covenants required to the Subordinated Note shall not be performed by Company under this Agreement at or prior to the Closing Date;outstanding.
(c) Company shall have delivered to Parent a certificate executed on its behalf by its Chief Executive Offer or Chief Financial Officer to the effect that each of the conditions specified in Sections 6.3(a) and (b) is satisfied in all respects;
(dh) Since the date of this Agreement, there shall not have been occurred any Event thatchange, event, occurrence, development or circumstance which, individually or in the aggregate, is having has had, or would could reasonably be expected to have, a Company Material Adverse Effect; PROVIDED, HOWEVER, that the loss of, or decrease in business with, any vendors or customers of the Company or any Company Subsidiary resulting from the public announcement of the transactions contemplated hereby shall be excluded from the determination of Company Material Adverse Effect for purposes of this Section 8.3(h).
(i) The time period for exercising appraisal rights under the DGCL shall have expired, and the Dissenting Shares shall not represent more than 3% of the total number of outstanding shares of Common Stock.
(j) Parent shall have obtained on terms and conditions satisfactory to Parent in its sole and absolute discretion all debt and equity financing necessary in order to consummate the transactions contemplated hereby and to refinance all of the Indebtedness of Parent and its Subsidiaries and all of the Indebtedness of the Company and the Company Subsidiaries.
(k) All authorizations, consents, notifications and approvals required to be made or obtained prior to the Effective Time by each party hereto from any Governmental Entity or other Person in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated 69 hereby shall have been made or obtained except for those, the failure of which to obtain could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on Company;Effect.
(el) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business All loans or other financing arrangements set forth on the day after the day Section 8.3(l) of the Company Shareholders Meeting) rights of dissent Disclosure Schedule shall have been repaid in connection full (or shall be repaid concurrently with the Merger; andClosing), all agreements and arrangements set forth on Section 8.3(l) of the Company Disclosure Schedule shall have been terminated, and the Company and Company Subsidiaries shall have been released in full from any further obligations under any such loans, agreements or arrangements.
(fm) The Company shall have delivered to Parent (i) the opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, special counsel to Seller and (ii) the opinion of the Company's general counsel, in each case, dated as of the Closing Date, in a form and substance reasonably satisfactory to Parent and its counsel and Parent's financing sources and setting forth such matters as Parent and Parent's financing sources may reasonably request (such opinions to provide that Parent's financing sources may rely on such opinions as if the opinions were addressed to them).
(n) The Stockholders' Representative shall have executed and delivered the Retention Escrow Agreement.
(o) The Company shall have provided (or caused to be provided) to Parent a duly executed certificate, substantially in the form of Exhibit 8.3 (o) attached hereto, to the effect that Parent and Merger Sub are not required to withhold under Section 1445 of the Code from any of the consideration to be paid hereunder (a "FIRPTA CERTIFICATE"). Notwithstanding any provision of this Agreement to the contrary, if the Parent does not receive a FIRPTA Certificate prior to Closing, Parent may waive the condition to Closing set forth in this Section 8.3(o) and withhold from consideration payable hereunder in accordance with the requirements of Section 1445 of the Code.
(p) No registration statement filed by the Company or any Company Subsidiary under the Securities Act shall have been declared effective after the date hereof.
(q) The Company shall have delivered to Parent the Target Closing Certificateaudited financial statements contemplated in Section 7.13(g) together with an unqualified report of the Company's independent auditors thereon, and such financial statements shall not differ in any material respect from the Financial Statements.
(r) All of the equity interests in Emerald Lady shall have been transferred to Parent or a Subsidiary of Parent free and clear of all Encumbrances, any third-party guarantor of the Emerald Loan Agreement shall have been fully released from any such obligations, the representations and warranties set forth in Section 4.9(c) shall be true and correct in all respects both when made and at and as of the Effective Time, evidence that Emerald Lady has been fully released from all obligations except for those set forth on Section 4.9(c)(iii) of the Company Disclosure Schedule shall have been delivered to Parent, and none of Parent, any Subsidiary of Parent, the Company or any Company Subsidiary shall have incurred any liability or obligation in connection with such transfer (other than Parent's or a Subsidiary of Parent's assumption of any third party guarantee of the Emerald Lady Loan Agreement), in each case, on terms and conditions satisfactory to Parent.
Appears in 1 contract
Samples: Merger Agreement (Solo Texas, LLC)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect the Merger shall be are subject to the satisfaction (or waiversatisfaction, if permissible under applicable Law) at or prior to the Closing Date Effective Time, of the following conditions:additional conditions (any of which may be waived by Parent and Merger Sub, in whole or in part, at any time prior to the Effective Time):
(a) (i) The representations and warranties of the Company set forth contained herein (other than the representations and warranties in ARTICLE 4 Section 5.2(a), Section 5.3, Section 5.4(a)(i), Section 5.6(a) and Section 5.22) shall be true and correct as of the Effective Time with the same effect as though made as of the Effective Time, except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and or some other date will be determined as of the Closing Date as though made on such date and as (z) where any such failure of the Closing Date, except to the extent any inaccuracies in such representations and warranties, individually or warranties in the aggregate, aggregate to be true and correct would not reasonably be expected to have a Company Material Adverse Effect on (without giving effect to any “materiality” or “Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not presentEffect” qualifications contained therein), ; and (ii) the representations and warranties of the Company set forth in Sections 4.2 Section 5.2(a), Section 5.3, Section 5.4(a)(i), Section 5.6(a) and 4.3 Section 5.22 shall be true and correct in all material respects both when made and at and as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, and (y) the accuracy of representations and warranties that by their terms speak as of the date of this Agreement and as of the Closing Date as if made at and or some other date will be determined as of such timedate; provided that with respect and Parent shall have received a certificate executed by a senior executive officer of the Company on its behalf to clauses (i) and (ii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) and (ii), as applicable) only as of such date or period;foregoing effect.
(b) The Company shall have performed or and complied with in all material respects with all of its obligations and covenants required under this Agreement to be performed by Company under this Agreement at or complied with on or prior to the Closing Date;
(c) Company Effective Time, and Parent shall have delivered to Parent received a certificate executed on its behalf by its Chief Executive Offer or Chief Financial Officer to the effect that each of the conditions specified in Sections 6.3(a) and (b) is satisfied in all respects;
(d) Since the date of this Agreement, there shall not have been any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day senior executive officer of the Company Shareholders Meeting) rights of dissent in connection with to the Merger; and
(f) Company shall have delivered to Parent the Target Closing Certificateforegoing effect.
Appears in 1 contract
Samples: Merger Agreement (Comtech Telecommunications Corp /De/)
Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect the Merger shall also be subject to the satisfaction (or waiver, if permissible under applicable Law) at or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent:
(a) (iw) The representations and warranties of the Company set forth in ARTICLE 4 Section 2.1(a), Section 2.1(b), Section 2.3 and Section 2.19 shall be have been true and correct correct, in all material respects, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent any inaccuracies in such representations and warranties, individually or in the aggregate, would not have a Material Adverse Effect on Company (provided that, for purposes of this Section 6.3(a)(i), any representation or warranty of Company that is qualified by materiality (or words of similar import) or Material Adverse Effect on Company shall be read as if such language were not present)Agreement, and (ii) the representations and warranties set forth in Sections 4.2 and 4.3 shall be true and correct correct, in all material respects as of the date of this Agreement respects, at and as of the Closing Date as if made at on and as of such time; provided Closing Date, except that with respect to clauses (i) and (ii) above, all such representations and warranties that are made qualified by “Company Material Adverse Effect” or other materiality qualifications shall be true and correct, in all respects, as of a particular the date of the Agreement, and shall be true and correct, in all respects, at and as of the Closing Date as if made on and as of such Closing Date with the understanding, for the sake of clarity, that the “Company Material Adverse Effect” or period other materiality qualifications in such representations and warranties shall continue in effect and shall not be disregarded; (x) the representations and warranties of the Company set forth in the first three sentences of Section 2.2(a), (b) and (c) shall have been true and correct in all but de minimis respects as of the date of the Agreement, and shall be true and correct in all but de minimis respects at and as of the Closing Date as if made on and as of such Closing Date, (in y) the manner representations and warranties of the Company set forth in Section 2.9(a) shall have been true and correct in all respects as of the date of the Agreement, and shall be true and correct in all respects at and as of the Closing Date as if made on and as of such Closing Date and (z) all other representations and warranties of the Company set forth in Article II shall have been true and correct in all respects as of the date of the Agreement, and shall be true and correct in all respects at and as of the Closing Date as if made on and as of such Closing Date except where the failure of such other representations and warranties to not be so true and correct would not reasonably be expected to result, individually or in the aggregate, in a Company Material Adverse Effect (it being understood that, for purposes of determining the accuracy of the representations and warranties pursuant to this clause (z), all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded). It is understood that for purposes of determining the accuracy of the representations and warranties pursuant to clauses (i) and (iiw), (x), (y) or (z) above, the truth and correctness of those representations or warranties that address matters only as applicable) of a specific date shall be measured only as of such date or perioddate;
(b) the Company shall have performed or complied in all material respects with all of its covenants and obligations and covenants that the Company is required to be performed by Company comply with or to perform under this the Agreement at or prior to the Closing DateClosing;
(c) Company Parent shall have delivered to Parent received a certificate executed signed on its behalf of the Company by its the Chief Executive Offer Officer or Chief Financial Officer of the Company to the effect that each of the conditions specified in Sections 6.3(aclauses (a) and (b) is satisfied in all respects;above have been satisfied; and
(d) Since since the date of this the Agreement, there shall not have been occurred any Event that, individually or in the aggregate, is having or would reasonably be expected to have a Company Material Adverse Effect on Company;
(e) Holders of shares of Company Common Stock representing in excess of 7.5% of the outstanding shares of Company Common Stock shall not have exercised (or, if exercised, shall not have withdrawn such exercise by the close of business on the day after the day of the Company Shareholders Meeting) rights of dissent in connection with the Merger; and
(f) Company shall have delivered to Parent the Target Closing CertificateEffect.
Appears in 1 contract
