Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) (i) The representations and warranties of the Buyer set forth in Section 4.1(a) (Organization), the first three sentences of Section 4.2(a) (Capitalization), Section 4.2(b) (Capitalization) and Section 4.3 (Authorization; Validity of Agreement), shall be true and correct both when made and at and as of the Closing Date, 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 respects, except for de minimis inaccuracies; (ii) the representations and warranties of the Buyer set forth in Section 4.6(ii) (Absence of Certain Changes) of this Agreement shall be true and correct in all respects both when made and at and as of the Closing Date, 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 (iii) the representations and warranties of the Buyer set forth in this Agreement (other than the representations and warranties described in clauses (i) and (ii) above) shall be true and correct (disregarding all qualifications or limitations as to “material,” “materiality” or “Material Adverse Effect” set forth therein) both when made and at and as of the Closing Date, 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), except in the case of this clause (iii) where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations as to “material,” “materiality” or “Material Adverse Effect” set forth therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect on the Buyer. The Company shall have received a certificate signed on behalf of the Buyer by an authorized executive officer of the Buyer to the foregoing effect; and (b) The Buyer shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of the Buyer by an authorized officer of the Buyer to such effect.
Appears in 2 contracts
Samples: Merger Agreement (Montage Resources Corp), Merger Agreement (Southwestern Energy Co)
Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Buyer Parent set forth in Section 4.1(a4.6(a)(ii) (Organization), the first three sentences of Section 4.2(a) (Capitalization), Section 4.2(b) (Capitalization) and Section 4.3 (Authorization; Validity of Agreement), shall be true and correct in all respects both when at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time; (ii) the representations and warranties of Parent set forth in Sections 4.2(a) and (b) shall be true and correct in all respects (except for any de minimis inaccuracies therein) both at and as of the date of this Agreement and at and as of the Closing Date, 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 respects, except for de minimis inaccuracies); (iiiii) the representations and warranties of the Buyer Parent set forth in Section 4.6(ii4.3 and all statements set forth in Section 4.26 (relating to Taxes) (Absence of Certain Changes) of this Agreement shall be true and correct in all material respects both when made at and as of the date of this Agreement and at and as of the Closing Date, 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 (iiiiv) the representations and warranties of the Buyer Parent set forth in this Agreement (other than the representations and warranties described set forth in clauses (iSections 4.2(a) and (iib), 4.3, and 4.6(a)(ii) aboveand the statements set forth in Section 4.26) shall be true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” or “Material Adverse Effect” set forth therein) both when made at and as of the date of this Agreement and at and as of the Closing Date, 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), except in the case of this clause (iii) where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” or “Material Adverse Effect” set forth therein), ) individually or in the aggregateaggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the BuyerParent. The Company shall have received a certificate signed on behalf of the Buyer Parent by an authorized each of two senior executive officer officers of the Buyer Parent to the foregoing effect; and;
(b) The Buyer Parent shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of Parent by the Buyer Chief Executive Officer or Chief Financial Officer of Parent to such effect;
(c) There shall not be pending any suit, action or proceeding by an any Governmental Entity seeking to restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) The Company shall have received the opinion of Xxxxx & Xxxxxx, P.C., counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent and the Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed and the Effective Time, as applicable, to the effect that (i) the Merger in combination with the Second Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.2(d), Xxxxx & Xxxxxx, P.C. shall have received and may rely upon the certificates and representations referred to in Section 5.12(d);
(e) Parent must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the Buyer to such effectrepresentations set forth in Section 4.26 and as otherwise reasonably requested by the Company’s or Parent’s tax counsel;
(f) The number of Dissenting Shares shall not exceed 9% of the outstanding shares of Company Common Stock and in the reasonable business judgment of the Company have the effect of disqualifying the Merger and Second Merger as constituting a reorganization under Section 368(a) of the Code; and
(g) During the period from the date of execution of this Agreement until the Effective Time, there shall not have occurred a Material Adverse Effect on Parent.
Appears in 2 contracts
Samples: Merger Agreement (Halcon Resources Corp), Merger Agreement (Georesources Inc)
Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Buyer each of Parent and Purchaser set forth in Sections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.1(a4.27 (relating to Taxes) (Organization), the first three sentences of Section 4.2(a) (Capitalization), Section 4.2(b) (Capitalization) and Section 4.3 (Authorization; Validity of Agreement), shall be true and correct both when made and at and as of the Closing Date, 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 respects, except for de minimis inaccuracies; (ii) the representations and warranties of the Buyer set forth in Section 4.6(ii) (Absence of Certain Changes) of this Agreement shall be true and correct in all material respects both when made at and as of the date of this Agreement and at and as of the Closing Date, 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 (iiiii) the representations and warranties of the Buyer each of Parent and Purchaser set forth in this Agreement (other than the representations and warranties described set forth in clauses (iSections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.27 (ii) above) relating to Taxes), shall be true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” or “Material Adverse Effect” set forth therein) both when made at and as of the date of this Agreement and at and as of the Closing Date, 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), except in the case of this clause (iii) where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” or “Material Adverse Effect” set forth therein), ) individually or in the aggregateaggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the BuyerParent. The Company shall have received a certificate signed on behalf of the Buyer Parent by an authorized each of two senior executive officer officers of the Buyer Parent to the foregoing effect; and;
(b) The Buyer Each of Parent and Purchaser shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of each of Parent and Purchaser by the Buyer Chief Executive Officer of each of Parent and Purchaser to such effect;
(c) There shall not be pending any suit, action or proceeding by an any Governmental Entity seeking to restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and
(d) The Company shall have received the opinion of Xxxxxx & Xxxxxx, L.L.P, counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the Form S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Purchaser and the Company, all of which are consistent with the state of facts existing as of the date on which the Form S-4 is filed and the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company, Parent and Purchaser will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.2(d), Xxxxxx & Xxxxxx, L.L.P shall have received and may rely upon the certificates and representations referred to in Section 5.14(d).
(e) Parent must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the Buyer to such effectrepresentations set forth in Section 4.27 and as otherwise reasonably requested by Parent’s tax counsel.
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Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect consummate the Merger is transactions contemplated by this Agreement, including the Merger, is, in addition to the conditions set forth in Section 7.1, further subject to the satisfaction or (to the extent permitted by Law) waiver by the Company at or prior to the Effective Time of the following conditions:
(a) (i) The each of the representations and warranties of the Buyer set forth Parent and Acquisition Sub contained in Section 4.1(a) (Organization)this Agreement, the first three sentences of Section 4.2(a) (Capitalization), Section 4.2(b) (Capitalization) and Section 4.3 (Authorization; Validity of Agreement)without giving effect to any materiality or “Parent Material Adverse Effect” qualifications therein, shall be true and correct both when as of the date of this Agreement and as of the Closing Date as if made and at on and as of the Closing Date, except for such failures to be true and correct as if made at and as of such time would not have a Parent Material Adverse Effect (except to the extent such representations and warranties are expressly made as of an earlier a specific date, in which case such representations and warranties shall be so true and correct as of such date) in all respectsspecific date only); provided, except for de minimis inaccuracies; (ii) however, that the representations and warranties of the Buyer set forth contained in Section 4.6(ii5.1 (Organization and Qualification), Section 5.2 (Authority) and Section 5.13 (Absence of Certain ChangesVote Required) of this Agreement shall be true and correct in all material respects both when made and at as of the date of this Agreement and as of the Closing Date, Date as if made at on and as of such time the Closing Date (except to the extent such representations and warranties are expressly made as of an earlier a specific date, in which case as of such date); and (iii) the representations and warranties of the Buyer set forth in this Agreement (other than the representations and warranties described in clauses (i) and (ii) above) shall be true and correct (disregarding all qualifications or limitations as to “material,” “materiality” or “Material Adverse Effect” set forth therein) both when made and at and as of the Closing Date, 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), except in the case of this clause (iii) where the failure of such representations and warranties to shall be so true and correct as of such specific date only);
(disregarding all qualifications b) Parent or limitations as to “material,” “materiality” or “Material Adverse Effect” set forth therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect on the Buyer. The Company Acquisition Sub shall have received a certificate signed performed or complied, in all material respects, with its obligations required under this Agreement to be performed or complied with by Parent or Acquisition Sub, as the case may be, on behalf of the Buyer by an authorized executive officer of the Buyer or prior to the foregoing effectClosing Date; and
(bc) The Buyer shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of the Buyer Parent by an authorized officer of Parent to the Buyer to such effecteffect that the conditions set forth in Sections 7.3(a) and 7.3(b) have been satisfied.
Appears in 1 contract
Samples: Merger Agreement (Kemet Corp)
Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Buyer set forth each of Parent, Merlin Holdco and Merger Sub in Section 4.1(a) (Organization), the first three sentences of Section 4.2(a) (Capitalization), Section 4.2(b) (Capitalization) and Section 4.3 (Authorization; Validity of Agreement), 4.7(ii) shall be true and correct both when made and at and as of the Closing Date(except, as if made at and as of such time (except with respect to the extent expressly made as of an earlier dateSection 4.2(a), in which case as of such date) in all respects, except for any de minimis inaccuracies; (ii) the representations and warranties of the Buyer set forth in Section 4.6(ii) (Absence of Certain Changes) of this Agreement shall be true and correct in all respects both when made and at and as of the Closing Date, 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 (iiiii) the representations and warranties of each of Parent and Merger Sub set forth in Section 4.2 (other than Section 4.2(a)), Section 4.4 and Section 4.23 shall be true and correct in all material respects when made and at and as of the Buyer Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date); and (iii) all other representations and warranties of each of Parent and Merger Sub set forth in this Agreement (other than the representations and warranties described in clauses (i) and (ii) above) shall be true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” or “Material Adverse Effect” set forth therein) both when made and at and as of the Closing Date, 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), except in the case of this clause (iii) where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations as to “material,” “materiality” or “Material Adverse Effect” set forth therein)correct, individually or in the aggregateaggregate has not had, and would not be reasonably likely expected to have a Parent Material Adverse Effect on the BuyerEffect. The Company shall have received a certificate signed on behalf of the Buyer Parent by an authorized each of two senior executive officer officers of the Buyer Parent to the foregoing effect; and;
(b) The Buyer Each of Parent and Merger Sub shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of each of Parent and Merger Sub by the Buyer by an authorized officer Chief Executive Officer of the Buyer each of Parent and Merger Sub to such effect;
(c) Since the date of this Agreement, there shall not have occurred any fact, circumstance, effect, change, event or development that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect, and the Company shall have received a certificate signed on behalf of Parent by an executive officer of Parent to such effect;
(d) The Parent Common Shares issuable to the stockholders of the Company in connection with the Merger and in respect of Company Equity Awards in accordance with Section 1.7 shall have been authorized for listing on the NYSE or the Nasdaq, in either case, subject to official notice of issuance; and
(1) The Company shall have received an opinion of any of O’Melveny & Xxxxx LLP or Ernst & Young LLP or if none of the foregoing is able or willing to render the required opinion, a nationally recognized tax advisor or legal counsel, in each case reasonably acceptable to the Company and Parent, dated as of the Closing Date to the effect that Section 7874 of the Code, the regulations promulgated thereunder, and any official interpretation thereof as set forth in published guidance by the IRS should not apply in such a manner so as to cause Parent to be treated as a domestic corporation for U.S. federal income tax purposes pursuant to Section 7874(b) of the Code after giving effect to the transactions contemplated by this Agreement from and after the Closing Date or (2) Parent shall have received an opinion of KPMG LLP or Xxxxxx & Xxxxxx LLP or if none of the foregoing is able or willing to render the required opinion, a nationally recognized tax advisor or legal counsel, in each case reasonably acceptable to the Company and Parent which opinion (x) satisfies the condition in Section 6.3(e), (y) has been provided to the Company and (z) the Company shall be specifically permitted by the issuer of such opinion to rely on such opinion. In rendering such opinion, O’Melveny & Xxxxx LLP, KPMG LLP, Ernst & Young LLP, Xxxxxx & Xxxxxx LLP or such other nationally recognized tax advisor or legal counsel shall be entitled to receive and rely upon representations, warranties and covenants of officers of the Parties and any of their respective affiliates as to such matters as such counsel may reasonably request.
Appears in 1 contract
Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Buyer each of Parent and Purchaser set forth in Sections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.1(a4.27 (relating to Taxes) (Organization), the first three sentences of Section 4.2(a) (Capitalization), Section 4.2(b) (Capitalization) and Section 4.3 (Authorization; Validity of Agreement), shall be true and correct both when made and at and as of the Closing Date, 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 respects, except for de minimis inaccuracies; (ii) the representations and warranties of the Buyer set forth in Section 4.6(ii) (Absence of Certain Changes) of this Agreement shall be true and correct in all material respects both when made at and as of the date of this Agreement and at and as of the Closing Date, 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 (iiiii) the representations and warranties of the Buyer each of Parent and Purchaser set forth in this Agreement (other than the representations and warranties described set forth in clauses (iSections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.27 (ii) above) relating to Taxes), shall be true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” or “Material Adverse Effect” set forth therein) both when made at and as of the date of this Agreement and at and as of the Closing Date, 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), except in the case of this clause (iii) where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” or “Material Adverse Effect” set forth therein), ) individually or in the aggregateaggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the BuyerParent. The Company shall have received a certificate signed on behalf of the Buyer Parent by an authorized each of two senior executive officer officers of the Buyer Parent to the foregoing effect; and;
(b) The Buyer Each of Parent and Purchaser shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of each of Parent and Purchaser by the Buyer Chief Executive Officer of each of Parent and Purchaser to such effect;
(c) There shall not be pending any suit, action or proceeding by an any Governmental Entity seeking to restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement; and
(d) The Company shall have received the opinion of Pxxxxx & Hxxxxx, L.L.P, counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the Form S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Purchaser and the Company, all of which are consistent with the state of facts existing as of the date on which the Form S-4 is filed and the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company, Parent and Purchaser will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.2(d), Pxxxxx & Hxxxxx, L.L.P shall have received and may rely upon the certificates and representations referred to in Section 5.14(d).
(e) Parent must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the Buyer to such effectrepresentations set forth in Section 4.27 and as otherwise reasonably requested by Parent’s tax counsel.
Appears in 1 contract
Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Buyer each of Parent and Merger Sub set forth in Section 4.1(a) (Organization), the first three sentences of Section 4.2(a) (Capitalization)4.1, Section 4.2(b) (Capitalization) 4.2 and Section 4.3 (Authorization; Validity of Agreement), shall be true and correct both when made and at and as of the Closing Date, 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 respects, except for de minimis inaccuracies; (ii) the representations and warranties of the Buyer set forth in Section 4.6(ii) (Absence of Certain Changes) date of this Agreement shall be true and correct in all respects both when made and at and as of the Closing Date, 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 (iiiii) the representations and warranties of the Buyer each of Parent and Merger Sub set forth in this Agreement (other than the representations and warranties described set forth in clauses (i) Section 4.1, Section 4.2 and (ii) aboveSection 4.3) shall be true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” materiality or “Material Adverse Effect” Effect set forth therein) both when made at and as of the date of this Agreement and at and as of the Closing Date, 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), except in the case of this clause (iiiii) where the failure for any failures of such representations and warranties to be so true and correct (disregarding all qualifications or limitations without giving effect to any limitation as to “material,” “materiality” materiality or “Material Adverse Effect” Effect set forth therein)) that, individually or in the aggregate, have not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on Parent or the Buyer. The Company shall have received a certificate signed on behalf of the Buyer by an authorized executive officer of the Buyer to the foregoing effect; andSurviving Corporation;
(b) The Buyer Each of Parent and Merger Sub shall have performed in all material respects each of its material covenants and obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the ;
(c) The Company shall have received a certificate signed on behalf of Parent by the Buyer by an authorized officer Chief Executive Officer and Chief Financial Officer of Parent to the effect that the conditions in clauses (a) and (b) above have been so satisfied;
(d) From the date of this Agreement through the Effective Time, there shall not have occurred any events, circumstances or developments that, individually or in the aggregate, have had a Material Adverse Effect on the Parent or the Merger Sub;
(e) The Company shall have received the opinion of Xxxxxxx Xxxxx, in form and substance reasonably satisfactory to the Company, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Buyer Effective Time, to such effectthe effect that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering the opinion described in this Section 6.2(e), Xxxxxxx Xxxxx shall have received and may rely upon the certificates and representations referred to in Section 5.13(c) hereof. After the Company Required Vote, the Company shall not waive receipt of a tax opinion from Xxxxxxx Xxxxx as a condition to Closing unless further approval of the shareholders of the Company is obtained with appropriate disclosure;
(f) The Parent Common Shares shall have been listed on the OSE; and
(g) A Parent Equity Offering shall have been consummated.
(h) Parent shall have received the cash proceeds of the Financing.
Appears in 1 contract
