Conditions to the Obligations of Company. The obligation of Company to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) the representations of Parent and Newco contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct in all material respects at and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations expressly related to an earlier date, in which case such representations shall be true and correct as of such earlier date) and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect; (b) each of the covenants and obligations of Parent and Newco to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed at or before the Effective Time and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect; (c) the shares of Parent Common Stock issuable to Company shareholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NYSE upon official notice of issuance; (d) Company shall have received the opinion of legal counsel to Parent as to the matters reasonably agreed upon by the parties; (e) Parent shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of Company, individually or in the aggregate, have a Material Adverse Effect on Parent; (f) the average price of Parent's common stock over the Valuation Period shall be no less than $8.25 per share; (g) the Surviving Corporation shall have executed and delivered at the Closing, each dated the Closing Date, an employment agreement substantially in the form attached hereto as Exhibit E with Georxx X. Xxxter, Jr., and an employment agreement substantially in the form attached hereto as Exhibit F with Danixx X. Xxxxxxxx; (h) Company shall have received an opinion from its outside tax counsel to the effect that the Merger will constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, dated the Closing Date, which opinion may be based upon reasonable representations of fact provided by officers of Parent and Company; and (i) there shall have been no events, changes or effects with respect to Parent or its subsidiaries having or which could reasonably be expected to have a Material Adverse Effect on Parent.
Appears in 1 contract
Samples: Merger Agreement (Writer Corp)
Conditions to the Obligations of Company. The obligation obligations of Company to effect consummate the Merger, or to permit the consummation of the Merger is are subject to the satisfaction at or prior to the Effective Time or, if permitted by applicable Law, waiver of the following further conditions:
(a) the The representations and warranties of Parent and Newco contained in this Agreement or shall have been accurate in any all material respects as of the date of this Agreement, and shall be accurate in all material respects as of the Effective Time as if made on and as of the Effective Time (other document delivered pursuant hereto than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects at as of such certain date) (it being understood that, for purposes of determining the accuracy of such representations and warranties, "Material Adverse Effect " qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded);
(b) Parent shall have performed or complied in all material respects with all covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time;
(c) The Company shall have been provided with a certificate executed by (i) an authorized officer of Parent on behalf of Parent and (ii) each of the Parent's Chairman of the Board of Directors, the Parent's Chief Executive Officer and the Parent's Chief Accounting Officer, certifying that the condition set forth in Section 8.02(a) shall have been fulfilled, and a certificate executed by an authorized officer of Parent on behalf of Parent certifying that the conditions set forth in Section 8.02(b) shall have been fulfilled;
(d) The Parent shall have furnished to Company (i) copies of the text of the resolutions by which the corporate action on the part of Parent necessary to approve this Agreement, the Agreement of Merger, the amended certificate of incorporation, the election of the directors listed on Schedule III, the adoption of the 2001 Plan and the transactions contemplated hereby and thereby were taken, (ii) a certificate dated as of the Effective Time with the same effect as if made at and as executed on behalf of the Effective Time (except Parent by its corporate secretary or one of its assistant corporate secretaries certifying to the extent Company that such representations expressly related to an earlier datecopies are true, in which case such representations shall be true correct and correct as complete copies of such earlier date) and, at the Closing, Parent resolutions and Newco shall that such resolutions were duly adopted and have delivered to Company a certificate to that effect;
(b) each of the covenants and obligations of Parent and Newco to be performed at not been amended or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed at or before the Effective Time and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect;
(c) the shares of Parent Common Stock issuable to Company shareholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NYSE upon official notice of issuance;
(d) Company shall have received the opinion of legal counsel to Parent as to the matters reasonably agreed upon by the parties;
(e) Parent shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of Company, individually or in the aggregate, have a Material Adverse Effect on Parent;
(f) the average price of Parent's common stock over the Valuation Period shall be no less than $8.25 per share;
(g) the Surviving Corporation shall have executed and delivered at the Closing, each dated the Closing Date, an employment agreement substantially in the form attached hereto as Exhibit E with Georxx X. Xxxter, Jr., and an employment agreement substantially in the form attached hereto as Exhibit F with Danixx X. Xxxxxxxx;
(h) Company shall have received an opinion from its outside tax counsel to the effect that the Merger will constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, dated the Closing Date, which opinion may be based upon reasonable representations of fact provided by officers of Parent and Company; and
(i) there shall have been no events, changes or effects with respect to Parent or its subsidiaries having or which could reasonably be expected to have a Material Adverse Effect on Parent.rescinded,
Appears in 1 contract
Samples: Merger Agreement (Ariel Corp)
Conditions to the Obligations of Company. The obligation obligations of Company to effect consummate the Merger, or to permit the consummation of the Merger is are subject to the satisfaction at or prior to the Effective Time or, if permitted by applicable Law, waiver of the following further conditions:
(a) the The representations and warranties of Parent and Newco contained in this Agreement or shall have been accurate in any all material respects as of the date of this Agreement, and shall be accurate in all material respects as of the Effective Time as if made on and as of the Effective Time (other document delivered pursuant hereto than representations and warranties which address matters only as of a certain date which shall be true and correct in all material respects at as of such certain date) (it being understood that, for purposes of determining the accuracy of such representations and warranties, "Material Adverse Effect " qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded);
(b) Parent shall have performed or complied in all material respects with all covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time;
(c) The Company shall have been provided with a certificate executed by (i) an authorized officer of Parent on behalf of Parent and (ii) each of the Parent's Chairman of the Board of Directors, the Parent's Chief Executive Officer and the Parent's Chief Accounting Officer, certifying that the condition set forth in Section 8.02(a) shall have been fulfilled, and a certificate executed by an authorized officer of Parent on behalf of Parent certifying that the conditions set forth in Section 8.02(b) shall have been fulfilled;
(d) The Parent shall have furnished to Company (i) copies of the text of the resolutions by which the corporate action on the part of Parent necessary to approve this Agreement, the Agreement of Merger, the amended certificate of incorporation, the election of the directors listed on Schedule III, the adoption of the 2001 Plan and the transactions contemplated hereby and thereby were taken, (ii) a certificate dated as of the Effective Time with executed on behalf of Parent by its corporate secretary or one of its assistant corporate secretaries certifying the same effect as if made at signature and as office of each officer of Parent executing this Agreement, the Agreement of Merger, the amended certificate of incorporation, or any other agreement, certificate or other instrument executed pursuant hereto, and (iv) a copy of the Effective Time (except to amended certificate of incorporation, certified by the extent such representations expressly related to an earlier dateSecretary of State of the State of Delaware, in which case such representations shall be true and correct as of such earlier date) and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect;
(b) each of good standing from the Secretary of State of the covenants and obligations State of Delaware, evidencing the good standing of Parent and Newco to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed at or before the Effective Time and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect;
(c) the shares of Parent Common Stock issuable to Company shareholders pursuant to this Agreement and in such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NYSE upon official notice of issuance;
(d) Company shall have received the opinion of legal counsel to Parent as to the matters reasonably agreed upon by the partiesjurisdiction;
(e) Parent The Company shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of Company, individually or in the aggregate, have a Material Adverse Effect on Parent;
(f) the average price of Parent's common stock over the Valuation Period shall be no less than $8.25 per share;
(g) the Surviving Corporation shall have executed and delivered at the Closing, each dated the Closing Date, an employment agreement substantially in the form attached hereto as Exhibit E with Georxx X. Xxxter, Jr., and an employment agreement substantially in the form attached hereto as Exhibit F with Danixx X. Xxxxxxxx;
(h) Company shall have received an opinion from its outside tax Company's legal counsel in form and substance reasonably satisfactory to it substantially to the effect that if the Merger is consummated in accordance with the provisions of this Agreement, under current law, for federal income tax purposes, the Merger will constitute qualify as a tax-free reorganization within the meaning of Section 368(a) of the Code, dated provided, that if Company is unable to obtain such an opinion from its legal counsel, this condition shall be deemed to be satisfied if Parent's legal counsel delivers an opinion to Company to the Closing Date, which opinion may same effect;
(f) The Surviving Corporation shall have been qualified for listing on the NNM in accordance with the Rule 4330(f) of the NNM;
(g) The Reverse Stock Split shall have been approved by the Parent stockholders and shall be based upon reasonable representations effective immediately prior to the Effective Time;
(h) Each share of fact provided by officers Company Preferred Stock outstanding prior to the Effective Time shall have been converted into shares of Parent and Company; andCompany Common Stock;
(i) there The Amended and Restated Investors' Rights Agreement dated as of November 1, 1999, the Amended and Restated Right of First Refusal and Co-Sale Agreement dated as of October 21,1999 and the Amended and Restated Voting Agreement dated as of October 21, 1999 shall have been no events, changes terminated;
(j) The Company shall have been furnished with evidence satisfactory to it of the consent or effects approval of those persons whose consent or approval shall be required in connection with respect to the Merger under any material contract of Parent or any of its subsidiaries having Subsidiaries or which could reasonably be expected otherwise, except where the failure to obtain such consent or approval would not have a Material Adverse Effect on Parent.;
(k) Each officer of Parent who is not designated to be an officer of Parent in accordance with subsection 2.05(b) shall have delivered a duly executed resignation from his or her position with Parent effective immediately after the Effective Time, and those persons listed on Schedule I hereto, shall ---------- have been elected as officers of Parent effective immediately after the Effective Time, to hold office until their successors are elected or appointed and qualified or until their resignation or removal;
(l) Each director of Parent who is not designated to be a director of Parent in accordance with subsection 2.05(c) shall have delivered a duly executed resignation from his or her position with Parent effective immediately after the Effective Time, and those persons listed on Schedule II hereto, shall ----------- have been elected as directors of Parent effective immediately after the Effective Time, to hold office until their successors are elected or appointed and qualified or until their resignation or removal;
(m) The board of directors of Parent and the Parent stockholders shall have approved the certificate of amendment to the certificate of incorporation of the Parent to (1) change its name to Mayan Networks Corporation as of the Effective Time, (2) increase the Parent Common Stock in order to reserve a sufficient number of authorized but unissued Parent Common Stock for issuance in the Merger and upon exercise or conversion of the Company Rights, and the certificate shall have been filed with, and approved by, the Secretary of State of the State of Delaware and (3) effect the Reverse Stock Split of the Parent Common Stock;
(n) The 2001 Plan shall have been approved by the board of directors of Parent and the Parent stockholders to be effective at the Effective Time;
(o) Parent shall have obtained from each of the optionees listed on Schedule 7.13 (including all optionees with options issued under Parent's 1995 Stock Option Plan), each of whom is holding a Parent Stock Option that has or may have any right to acceleration of vesting due to the Merger, a waiver of such right to acceleration;
(p) Parent shall have prepared and filed a registration statement with the SEC, which registration statement shall have been declared effective at the Effective Time, covering the resale of the Convertible Subordinated Promissory Notes, the Exchange Notes and the Underlying Conversion Shares;
(q) Parent shall have maintained directors' and officers' liability insurance policies in amounts and with coverages equivalent to those in effect as of the date hereof;
(r) No Parent Material Adverse Effect shall have occurred or shall be continuing since the date of this Agreement;
(s) The employees of Parent specifically identified on Schedule III ------------ shall have accepted employment with Company and shall have entered into employment agreements in the form attached hereto Annex C; -------
(u) Company shall have received a legal opinion from Parent's legal counsel, in the form attached hereto as Annex E. -------
Appears in 1 contract
Conditions to the Obligations of Company. The obligation obligations of Company to effect consummate the Merger is transactions contemplated hereby shall be further subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following conditions, any one or more of which may be waived, in whole or in part, by Company:
(a) 9.3.1 Parent shall have performed and complied in all material respects with the representations of Parent and Newco agreements contained in this Agreement required to be performed and complied with by it at or prior to the Closing Date, and the representations and warranties of Parent set forth in any other document delivered pursuant hereto this Agreement shall be true and correct in all material respects at as of the Execution Date and as of the Effective Time with the same effect Closing Date as if though made at and as of the Effective Time Closing Date (except to as otherwise contemplated by this Agreement).
9.3.2 Company shall have received all approvals from the extent such representations expressly related to an earlier date, in which case such representations shall be true Company Stockholders required under applicable law for the adoption of the Agreement and correct as the consummation of such earlier date) and, at the Closing, Merger and the transactions contemplated hereunder.
9.3.3 Parent and Newco shall have delivered to Company a certificate the executed legal opinion of Meitar Liquornik Geva & Leshem Xxxxxxxxx, counsel to that effect;
(b) each of the covenants Parent, in form and obligations of Parent and Newco to be performed at or before the Effective Time pursuant substance reasonably acceptable to the terms of this Agreement shall have been duly performed at or before the Effective Time and, at the Closing, Company’s counsel.
9.3.4 Parent and Newco shall have delivered to the Company a certificate, in form and substance reasonably acceptable to the Company, executed by two officers of Parent, certifying that each of the representations and warranties set forth in Section 7 is accurate in all material respects as of the Closing Date, and that the conditions set forth in such certificate have been duly satisfied, and certifying to that effect;
(c) the shares adoption of resolutions by the Board of Directors of Parent Common (a) authorizing the consummation of the Merger, including the issuance of the Stock issuable Consideration on the terms set forth herein, and (b) authorizing the appointment of Xxxx X. Xxxxxx as a non-voting observer to Company shareholders pursuant to this Agreement and such other shares required to be reserved for issuance Parent’s Board of Directors as contemplated by Section 8.8.
9.3.5 Parent shall have delivered the Merger Consideration in connection accordance with the Merger terms of Section 4, and shall have executed and delivered each of the Company Stockholders Agreements that have been authorized for listing on the NYSE upon official notice of issuance;executed and provided to Parent by such Company Stockholders.
(d) 9.3.6 Company shall have received the opinion Delaware Certificate of legal counsel to Parent as to Merger, duly executed by Merger Sub.
9.3.7 The aggregate Agreed Value of the matters reasonably agreed upon by the parties;
(e) Parent Stock Consideration shall have obtained the consent or approval of each person whose consent or approval shall not be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of Company, individually or in the aggregate, have a Material Adverse Effect on Parent;
(f) the average price of Parent's common stock over the Valuation Period shall be no less than $8.25 per share;
Three Million Seven Hundred and Seventy Thousand U.S. Dollars (g) the Surviving Corporation shall have executed and delivered at the Closing, each dated the Closing Date, an employment agreement substantially in the form attached hereto as Exhibit E with Georxx X. Xxxter, Jr., and an employment agreement substantially in the form attached hereto as Exhibit F with Danixx X. Xxxxxxxx;
(h) Company shall have received an opinion from its outside tax counsel to the effect that the Merger will constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, dated the Closing Date, which opinion may be based upon reasonable representations of fact provided by officers of Parent and Company; and
(i) there shall have been no events, changes or effects with respect to Parent or its subsidiaries having or which could reasonably be expected to have a Material Adverse Effect on ParentU.S.$3,770,000).
Appears in 1 contract
Samples: Merger Agreement (Viryanet LTD)
Conditions to the Obligations of Company. The obligation obligations of Company to effect the Merger is Purchase and the other transactions contemplated hereby are subject to the satisfaction or waiver at or prior to the Effective Time Closing Date of each of the following conditions:conditions (any one or more of which may be waived by Company in writing);
(a) the representations and warranties of Parent Seller and Newco the Shareholders contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made at on and as of the Effective Time (except to the extent such representations expressly related to an earlier dateClosing Date, in which case such representations shall be true and correct as of such earlier date) and, at the Closing, Parent and Newco Seller shall have delivered to Company a certificate to that effect, executed on behalf of Seller by one or more executive officers of Company;
(b) each of the covenants and obligations of Parent Seller and Newco the Shareholders to be performed at on or before the Effective Time Closing Date pursuant to the terms of this Agreement shall have been duly performed at in all material respects on or before the Effective Time Closing Date and, at the Closing, Parent and Newco Seller shall have delivered to Company a certificate to that effect, executed on behalf of Company by one or more executive officers of Company;
(c) there shall not have occurred a material adverse change with respect to Seller or the shares of Parent Common Stock issuable to Company shareholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NYSE upon official notice of issuanceAssets;
(d) Company Seller shall have received executed and delivered the opinion of legal counsel to Parent as to the matters reasonably agreed upon by the partiesagreements and documents that are described in Section 1.5(b);
(e) Parent shall have obtained the consent No claim, action, investigation or approval of each person whose consent or approval other proceeding shall be required in connection with pending or threatened before any court or governmental agency that presents a substantial risk of the restraint or rescission of the transactions contemplated hereby under any loan by this Agreement or credit agreement, note, mortgage, indenture, lease, or other agreement or instrument, except those for which failure that imposes a substantial risk to Company’s ability to obtain such consents title to and approvals would not, in possession of the reasonable opinion of Company, individually or in Assets on the aggregate, have a Material Adverse Effect on Parentterms and conditions contemplated by this Agreement;
(f) There shall have been obtained all permits, approvals and consents from governmental agencies and third parties that Company determines are required in order to transfer the average price of Parent's common stock over the Valuation Period shall be no less than $8.25 per shareAssets to it;
(g) All actions required to be taken by Seller to authorize the Surviving Corporation execution, delivery and performance of this Agreement shall have executed been duly and delivered at the Closing, each dated the Closing Date, an employment agreement substantially in the form attached hereto as Exhibit E with Georxx X. Xxxter, Jr., and an employment agreement substantially in the form attached hereto as Exhibit F with Danixx X. Xxxxxxxxvalidly taken;
(h) The Company shall have received an opinion from conducted, at its outside tax counsel to the effect that the Merger will constitute expense, a tax-free reorganization within the meaning of Section 368(a) due diligence examination of the CodeAssets and, dated in its sole discretion, shall not have disapproved of the Closing Dateresults of its review;
(i) Company, which opinion may be based upon reasonable representations at its expense, shall have completed an audit of fact provided by officers the financial statements of Parent Seller for the fiscal years ended December 31, 2006 and Company2005 and shall have prepared unaudited financial statements for the period ended June 30, 2007; and
(ij) there Company shall have been no events, changes or effects with respect be reasonably satisfied that Company will be able to Parent or its subsidiaries having or which could reasonably be expected generate financial statements to have a Material Adverse Effect on Parentsatisfy the reporting requirements of Company under applicable SEC rules.
Appears in 1 contract
Conditions to the Obligations of Company. The obligation obligations of the Company to effect consummate the Merger is transactions contemplated hereby shall be subject to the satisfaction at satisfaction, on or prior to before the Effective Time Closing Date, of each and every one of the following conditions:, unless waived, in whole or in part, by the Company for purposes of consummating such transaction.
(a) the The representations and warranties of Parent Acquiror and Newco contained set forth in this Agreement or in any other document delivered pursuant hereto shall be true and correct in all material respects at the Effective Time;
(b) Acquiror and Newco shall have performed and complied with all agreements, obligations, covenants and conditions required by this Agreement to be performed or complied with on or prior to the Effective Time;
(c) The Company shall have received a certificate, dated the Effective Time and signed by the President of the Acquiror to the effect set forth in Section 6.1(a) and 6.1(b) for the purpose of verifying the accuracy of such representations and warranties as of the Effective Time with and the same effect as if made at performance and as of the Effective Time (except to the extent such representations expressly related to an earlier date, in which case such representations shall be true and correct as satisfaction of such earlier date) and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect;
(b) each of the covenants and obligations of Parent and Newco to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed at or before the Effective Time and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect;
conditions (c) the shares of Parent Common Stock issuable to Company shareholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NYSE upon official notice of issuance"Acquiror's Bring Down Certificate");
(d) Company The Seller shall have received each of the opinion following, dated as of legal counsel to Parent the Effective Time:
(i) A certificate executed by the Secretary of Acquiror (the Acquiror's Secretary Certificate") certifying, as of the Effective Time, (1) a true and complete copy of the certificate of incorporation and all amendments thereto of Acquiror certified as of a recent date by the Secretary of State of the State of Delaware, (2) a true and complete copy of the resolutions of the board of directors of Acquiror authorizing the execution, delivery and performance of this Agreement by Acquiror and the consummation of the transactions contemplated hereby, and (3) incumbency matters; and
(ii) A certificate executed by the Secretary of Newco (the Newco Secretary Certificate") certifying, as of the Effective Time, (1) a true and complete copy of the certificate of incorporation and all amendments thereto of Newco certified as of a recent date by the Secretary of State of the State of California, (2) a true and complete copy of the resolutions of the board of directors of Newco authorizing the execution, delivery and performance of this Agreement by Newco and the consummation of the transactions contemplated hereby, and (3) incumbency matters; and
(iii) A certificate of the Secretary of State of the State of Delaware as to the matters reasonably agreed upon by existence and good standing of the parties;Acquiror and certificates of the appropriate governmental authorities of each state in which Acquiror is qualified or authorized to transact business as to the good standing and qualification or authorization of Acquiror (the "Acquiror Good Standing Certificates"); and
(iv) A certificate of the Secretary of State of the State of California as to the existence and good standing of the Newco and certificates of the appropriate governmental authorities of each state in which Newco is qualified or authorized to transact business as to the good standing and qualification or authorization of Newco (the "Newco Good Standing Certificates")
(e) Parent No action, suit or proceeding by or before any court or any governmental or regulatory authority shall have obtained the consent been commenced and no investigation by any governmental or approval of each person whose consent regulatory authority shall have been commenced seeking to restrain, prevent or approval shall be required in connection with challenge the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of Company, individually or in the aggregate, have a Material Adverse Effect on Parent;
(f) the average price of Parent's common stock over the Valuation Period shall be no less than $8.25 per share;
(g) the Surviving Corporation shall have executed and delivered at the Closing, each dated the Closing Date, an employment agreement substantially in the form attached hereto as Exhibit E with Georxx X. Xxxter, Jr., and an employment agreement substantially in the form attached hereto as Exhibit F with Danixx X. Xxxxxxxx;
(h) Company shall have received an opinion from its outside tax counsel to the effect that the Merger will constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, dated the Closing Date, which opinion may be based upon reasonable representations of fact provided by officers of Parent and Company; and
(i) there shall have been no events, changes or effects with respect to Parent or its subsidiaries having or which could reasonably be expected to have a Material Adverse Effect on Parentseeking judgments against Acquiror.
Appears in 1 contract
Conditions to the Obligations of Company. The obligation of Company to effect the Merger is subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) the The representations and warranties of Parent and Newco Merger Sub contained in this Agreement or in any other document delivered pursuant hereto shall Agreement, taken as a whole, must be true and correct in all material respects at (without giving effect to any materiality qualifications or limitations therein or any references therein to Parent Material Adverse Effect), both when made and on and as of the Effective Time with the same effect as if though such representations and warranties had been made at and as of the Effective Time (such date, except to the extent such representations and warranties expressly related refer to an a specific earlier date, in which case such representations shall and warranties must be true and correct in all respects (without giving effect to any materiality qualifications or limitations therein or any references therein to Parent Material Adverse Effect) as of such earlier datedate (in either case, (i) and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect;
(b) each of the covenants and obligations of Parent and Newco to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed at or before the Effective Time and, at the Closing, Parent and Newco shall have delivered to Company a certificate to that effect;
(c) the shares of Parent Common Stock issuable to Company shareholders pursuant to this Agreement and except for such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NYSE upon official notice of issuance;
(d) Company shall have received the opinion of legal counsel to Parent as to the matters reasonably agreed upon by the parties;
(e) Parent shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of Companyfailures which, individually or in the aggregate, have do not have, and would not reasonable be expected to cause a Parent Material Adverse Effect on Parentand (ii) taking into account any changes permitted by this Agreement);
(fb) Parent and Merger Sub must have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the average price of Parent's common stock over the Valuation Period shall be no less than $8.25 per shareEffective Time;
(gc) the Surviving Corporation shall Company must have executed and delivered at the Closing, each received a certificate dated the Closing Date, an employment agreement substantially Date and signed by the President or any Vice President of each of Parent and Merger Sub in the form attached hereto his or her capacity as Exhibit E with Georxx X. Xxxter, Jr., and an employment agreement substantially in the form attached hereto as Exhibit F with Danixx X. Xxxxxxxx;
(h) Company shall have received an opinion from its outside tax counsel such to the effect that each condition specified in Sections 8.3(a) and (b) has been satisfied in all respects;
(d) Parent will have delivered the Merger will constitute a tax-free reorganization within the meaning of Section 368(a) of the Code, dated the Closing Date, which opinion may be based upon reasonable representations of fact provided by officers of Parent and CompanyConsideration in accordance with this Agreement; and
(e) Parent will have delivered to Company copies of (i) there shall have been no eventsall resolutions of Parent’s and Merger Sub’s respective Boards of Directors authorizing the transactions contemplated by this Agreement and (ii) a written consent of the sole stockholder of Merger Sub authorizing the transactions contemplated by this Agreement, changes in each case certified by Parent and Merger Sub’s respective Secretary or effects with respect to Parent or its subsidiaries having or which could reasonably be expected to have a Material Adverse Effect on ParentAssistant Secretary, as the case may be, as being true, complete, correct and in full force and effect.
Appears in 1 contract
