Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or waiver by Merger Sub of the following further conditions: - the Company will have performed, in all material respects, all of its obligations required under the Merger Agreement to be performed by it at or prior to the Effective Time each of the representations and warranties of the Company contained in the Merger Agreement that are qualified by materiality or by Company Material Adverse Effect will be true and correct, and that are not so qualified will be 55 61 true and correct in all material respects as of the date of the Merger Agreement and as of the Closing Date; - Saw Mill, Parent and Merger Sub will have received an opinion of counsel from the Special Committee's legal counsel; - the Surviving Corporation will have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity financing sufficient to complete the Merger and to pay all fees and expenses in connection with the Merger and to provide working capital for the Surviving Corporation; - since December 31, 1998, no event has occurred or will occur which has or which would reasonably be expected to have a Company Material Adverse Effect; - all Company Stock Options will be extinguished and, as of immediately prior to Closing, the Company will have no liability or obligation with respect to any such Company Stock Options; - except as set forth in the Merger Agreement, all outstanding indebtedness for borrowed money of the Company or any of its subsidiaries will be paid in full, any letters of credit of the Company or any of its subsidiaries will be terminated and the Company will have obtained the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, and the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - the Company will have obtained all consents, authorizations, approvals and waivers from third parties which are necessary in order to enable the completion of the transactions contemplated by the Merger Agreement and the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conducted; and - the Dissenting Shares, if any, will not include more than 10% of the issued and outstanding shares of Common Stock.
Appears in 2 contracts
Samples: Proxy Statement (Jason Inc), Proxy Statement (Jason Inc)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or or, if permitted by applicable Law, waiver by Merger Sub of the following further conditions: - the :
(a) The Company will shall have performed, in all material respects, performed all of its obligations hereunder required under the Merger Agreement to be performed by it at or prior to the Effective Time Time; (ii) each of the representations and warranties of the Company contained in the Merger this Agreement that are qualified by materiality or by Company Material Adverse Effect will shall be true and correct, and that are not so qualified will be 55 61 true and correct in all material respects each case as of the date Closing Date as if made at and as of such time; and (iii) Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this paragraph 8.02(a);
(b) Merger Sub shall have received an opinion, dated on or about the Closing Date, of Greexxxxx Xxxuxxx, X.A., similar in form and substance to opinions normally given in transactions of this kind and which is reasonably satisfactory to Merger Sub;
(c) Each of the Shareholders shall have performed all of his obligations hereunder required to be performed by it at or prior to the Effective Time, including its obligation to consummate the Preference Exchange; (ii) each of the representations and warranties of the Shareholders contained in this Agreement shall be true and correct, in each case as of the Closing Date, as if made at and as of such time; - Saw Mill, Parent and (iii) Merger Sub will shall have received an opinion of counsel from a certificate signed by the Special Committee's legal counsel; - Shareholders as to compliance with the conditions set forth in this paragraph 8.02(c);
(d) Shareholders shall have executed and delivered a Stockholders Agreement in form and substance reasonably satisfactory to Merger Sub, containing the terms set forth in the term sheet annexed hereto as EXHIBIT C;
(e) Surviving Corporation will shall have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity financing sufficient to complete consummate the Merger Transactions and to pay all fees and expenses in connection with the Merger therewith and to provide working capital for the Surviving Corporation; - since December 31, 1998all on terms reasonably satisfactory to the Surviving Corporation and the Investors;
(f) Since the date of this Agreement, no event has shall have occurred or will occur which has or which would reasonably be expected to have a Company Material Adverse Effect; - all ;
(g) The Company shall have amended its Articles of Incorporation in connection with the Preference Amendment;
(h) The Shareholders shall have converted an aggregate of 295,000 shares of Company Common Stock Options will be extinguished and, as into that number of shares of Series B Preference Stock such that immediately prior to Closingafter the Equity Contribution and the Preference Exchange, the Company Shareholders will have no liability or obligation with respect to any such Company Stock Options; - except as set forth in the Merger Agreement, all outstanding indebtedness for borrowed money own an aggregate of the Company or any of its subsidiaries will be paid in full, any letters of credit of the Company or any of its subsidiaries will be terminated and the Company will have obtained the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, and the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - the Company will have obtained all consents, authorizations, approvals and waivers from third parties which are necessary in order to enable the completion of the transactions contemplated by the Merger Agreement and the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conducted; and - the Dissenting Shares, if any, will not include more than 1019.75% of the issued and outstanding Preference Stock of the Company, as adjusted pursuant to Section 2.01(f);
(i) The Company shall have issued to the Investors in exchange for the Equity Contribution that number of shares of Common Stock.Series A Preference Stock such that immediately
Appears in 1 contract
Samples: Recapitalization Agreement and Plan of Merger (Equitrac Corporation)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or or, if permitted by applicable Law, waiver by Merger Sub of the following further conditions: - the :
(a) The Company will shall have performed, in all material respects, all of its obligations hereunder required under the Merger Agreement to be performed by it at or prior to the Effective Time Time; each of the representations and warranties of the Company contained in the Merger this Agreement (i) that are qualified by materiality or by Company Material Adverse Effect will shall be true and correct, correct and (ii) that are not so qualified will by materiality or by Company Material Adverse Effect shall be 55 61 true and correct in all material respects respects, in each case, as of the date of the Merger Agreement hereof and as of the Closing DateDate as if made at and as of such time; - and Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this Section 8.02(a);
(b) Saw Mill, Parent and Merger Sub will shall have received an opinion of counsel from Michxxx Xxxx & Xriexxxxx XXX, which opinion of counsel shall be substantially in the Special Committee's legal counsel; - the form attached hereto as Exhibit H;
(c) Surviving Corporation will shall have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity other financing sufficient to complete consummate the Merger (including the payment of the Merger Consideration, the Option Consideration and the repayment of indebtedness for borrowed money of the Company or any of its subsidiaries that is required to be repaid as a result of the Transactions, if any) and to pay all fees and expenses in connection with the Merger therewith and to provide working capital for the Surviving Corporation; - since ;
(d) Since December 31, 1998, no event has shall have occurred or will occur which has or which would reasonably be expected to have a Company Material Adverse Effect; - all ;
(e) All Company Stock Options will shall be extinguished and, as of immediately prior to Closing, the Company will shall have no liability or obligation with respect to any such Company Stock Options; - , except as provided in Section 2.03;
(f) Except as set forth in the Merger Agreementon Exhibit D hereto, all outstanding indebtedness for borrowed money of the Company or any of its subsidiaries will shall be paid in full, (ii) any letters of credit of the Company or any of its subsidiaries will shall be terminated and (iii) the Company will shall have obtained (x) the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, indebtedness and (y) the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - . At the Closing, the Company will shall provide or arrange to be provided to Merger Sub all releases and other documents in form and substance reasonably satisfactory to Merger Sub demonstrating the release of such liens, encumbrances and guarantees;
(g) The Company shall have obtained all consents, authorizations, approvals and waivers from third parties parties, in form reasonably acceptable to Merger Sub (x) which are necessary in order to enable (i) the completion consummation of the transactions contemplated by the Merger Agreement Transactions and (ii) the Surviving Corporation to conduct its business in all material respects after the Closing Date on the 36 42 same basis as it is currently conductedconducted prior to the date hereof, in each case, except for those failure of which to obtain would not have, individually or in the aggregate, a Company Material Adverse Effect and (y) which are listed on Exhibit E hereto; and - the and
(h) The Dissenting Shares, if any, will shall not include more greater than 10% of the issued and outstanding shares of Company Common Stock.
Appears in 1 contract
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or waiver by Merger Sub of the following further conditions: - :
(a) (i) the Company will shall have performed, performed in all material respects, respects all of its obligations hereunder required under the Merger Agreement to be performed by it at or prior to the Effective Time each of Time, (ii) except to the extent expressly permitted under this Agreement, the representations and warranties of the Company contained in this Agreement and in any certificate or other writing delivered by the Merger Agreement Company pursuant hereto (x) that are qualified by materiality or by Company Material Adverse Effect will shall be true at and correctas of the Effective Time as if made at and as of such time, and (y) that are not so qualified will by materiality or Material Adverse Effect shall be 55 61 true and correct in all material respects as of the date of the Merger Agreement at and as of the Closing Date; - Saw Mill, Parent Effective Time as if made at and as of such time and (iii) Merger Sub will shall have received an opinion a certificate signed by the President of counsel from the Special CommitteeCompany to the foregoing effect;
(b) there shall not be instituted or pending any action or proceeding by any government or governmental authority or agency that has a reasonable likelihood of success, before any court or governmental authority or agency, (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger or seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by this Agreement, (ii) seeking to restrain or prohibit the Surviving Corporation's legal counsel; - (including its Subsidiaries and affiliates) ownership or operation of all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to compel the Surviving Corporation will have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity financing sufficient to complete the Merger and to pay all fees and expenses in connection with the Merger and to provide working capital for the Surviving Corporation; - since December 31, 1998, no event has occurred or will occur which has or which would reasonably be expected to have a Company Material Adverse Effect; - all Company Stock Options will be extinguished and, as of immediately prior to Closing, the Company will have no liability or obligation with respect to any such Company Stock Options; - except as set forth in the Merger Agreement, all outstanding indebtedness for borrowed money of the Company or any of its subsidiaries will be paid in full, Subsidiaries or affiliates to dispose of or hold separate all or any letters material portion of credit the business or assets of the Company and its Subsidiaries, taken as a whole, (iii) seeking to impose or confirm material limitations on the ability of the Surviving Corporation or any of its subsidiaries will be terminated and Subsidiaries or affiliates to effectively control the Company will have obtained the release of all liens business or encumbrances on the capital stock operations of the Company and its Subsidiaries, taken as a whole, or the ability of DLJMB or any of its subsidiaries and all assets Affiliates effectively to exercise full rights of ownership of any shares of the Company Surviving Corporation or any of its subsidiaries securing indebtednessSubsidiaries or affiliates prior to the Effective Time on all matters properly presented to the Surviving Corporation's stockholders, and the release of all guarantees or (iv) seeking to require divestiture by the Company DLJMB or any of its subsidiaries Affiliates of indebtedness for borrowed money; - any shares of the Surviving Corporation, and no court, arbitrator or governmental body, agency or official shall have issued any judgment, order, decree or injunction, and there shall not be any statute, rule or regulation proposed, adopted or enacted, that, in the sole judgment of Merger Sub is likely, directly or indirectly, to result in any of the consequences referred to in the preceding clauses (i) through (iv);
(c) Merger Sub shall have received all documents it may reasonably request relating to the existence of the Company will have obtained all consents, authorizations, approvals and waivers from third parties which are necessary in order to enable the completion Subsidiaries and the authority of the transactions Company for this Agreement, all in form and substance satisfactory to Merger Sub;
(d) funds in an amount at least equal to the Required Amounts shall have been made available to Merger Sub as contemplated by in Section 4.07;
(e) the Merger Agreement and the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conducted; and - the Dissenting Shares, if any, will holders of not include more than 10% of the issued outstanding Shares shall have exercised dissenters' rights in accordance with Minnesota Law;
(f) no change in accounting practice or policies by the SEC after the date hereof shall cause Merger Sub reasonably to conclude that the Merger will not be recorded as a "recapitalization" for financial reporting purposes;
(g) the Charter Amendment shall have become effective under Minnesota Law and outstanding shares the exchange contemplated by Section 5.08 shall have occurred;
(h) if requested by Merger Sub pursuant to Section 5.07, the certificate of Common Stockdesignation for the Mirror Preferred Stock shall have been accepted for filing by the Minnesota Secretary of State; and
(i) total indebtedness (long and short term), net of cash and marketable securities, of the Company and its Subsidiaries as of the Effective Time shall not exceed $125,000,000.
Appears in 1 contract
Samples: Merger Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger under this Agreement are subject to the satisfaction satisfaction, at or waiver by Merger Sub before the Closing, of each of the following further conditions: - conditions (any of which may be waived in writing by Merger Sub):
(a) The representations and warranties of DBA Group and the Company will have performed, Equity Holders contained herein that are qualified as to materiality shall be true in all material respectsrespects on and as of the Closing Date (except for the representations and warranties made as of a specific date which shall be true in all material respects as of such date) with the same force and effect as though made on and as of such date, all of its obligations required under the Merger Agreement to be performed by it at or prior to the Effective Time and each of the representations and warranties of DBA Group and the Company Equity Holders contained in the Merger Agreement that are qualified by materiality or by Company Material Adverse Effect will be true and correct, and herein that are not so qualified will shall be 55 61 true in all respects.
(b) DBA Group and correct the Equity Holders shall have performed and complied in all material respects as with all covenants, agreements, obligations and conditions required by this Agreement to be performed or complied with by them at or prior to the Closing.
(c) There shall not be threatened, instituted or pending any suit, action, investigation, inquiry or other proceeding by or before any court or governmental or other regulatory or administrative agency or commission requesting or looking toward an order, judgment or decree that (a) restrains or prohibits the consummation of the date of the Merger Agreement and as of the Closing Date; - Saw Milltransactions contemplated hereby, Parent and Merger Sub will have received an opinion of counsel from the Special Committee's legal counsel; - the Surviving Corporation will have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity financing sufficient to complete the Merger and to pay all fees and expenses in connection with the Merger and to provide working capital for the Surviving Corporation; - since December 31, 1998, no event has occurred or will occur which has or which would (b) could reasonably be expected to have a Company Material Adverse Effect; - all Company Stock Options will material adverse effect on Merger Sub’s ability to exercise control over or manage DBA Group after the Closing or (c) could reasonably be extinguished and, as of immediately prior expected to Closing, the Company will have no liability or obligation with respect to any such Company Stock Options; - except as set forth in the Merger Agreement, all outstanding indebtedness for borrowed money of the Company or any of its subsidiaries will be paid in full, any letters of credit of the Company or any of its subsidiaries will be terminated and the Company will have obtained the release of all liens or encumbrances a material adverse effect on the capital stock Business of DBA Group.
(d) On the Company Closing Date, there shall be no effective injunction, writ, preliminary restraining order or any other order issued by a court of its subsidiaries and all assets of competent jurisdiction restraining or prohibiting the Company or any of its subsidiaries securing indebtedness, and the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - the Company will have obtained all consents, authorizations, approvals and waivers from third parties which are necessary in order to enable the completion consummation of the transactions contemplated hereby.
(e) DBA Group shall have delivered to Merger Sub a certificate, dated the Closing Date, executed by the Secretary of DBA Group, certifying as to (a) DBA Group’s articles of organization, (b) DBA Group’s operating agreement, (c) resolutions with respect to the transactions contemplated by this Agreement adopted by DBA Group’s members and the operating manager attached to such certificate, and (d) incumbency and signatures of the persons who have executed this Agreement, the Related Agreements and any other documents, certificates and agreements to be executed and delivered at the Closing pursuant to this Agreement or any of the Related Agreements on behalf of DBA Group.
(f) Merger Sub shall have received an opinion of Xxxxxx, Xxxxxxx & Xxxxxx, LLP, counsel to DBA Group, dated the Closing Date, in form and substance reasonably satisfactory to Merger Sub.
(g) Merger Sub shall have received reasonable evidence that all indebtedness of DBA Group has been paid in full including, but not limited to, that certain Term Loan between Bank of America, N.A. and The DBA Group LLC dated July 19, 2006.
(h) Merger Sub shall have received the Searches in accordance with Section 8.4(g) . Seller shall have had all Encumbrances affecting DBA Group or its assets released and discharged (whether or not such Encumbrances are reflected in the Searches or the Schedules). Merger Sub shall have received evidence reasonably satisfactory to it (including, without limitation, UCC-3 termination statements) that such Encumbrances have been released and discharged of record.
(i) Xxxx Xxxxx Xxxxxx shall have entered into an employment agreement with Merger Sub (the “Employment Agreement”), substantially in the form of Exhibit A.
(j) Each Equity Holder shall have entered into a confidentiality, non-competition, and non-solicitation agreement (the “Confidentiality, Non-Competition, and Non-Solicitation Agreement”), substantially in the form of Exhibit B.
(k) Each Equity Holder shall have entered into a lock-up agreement with Zanett (the “Lockup Agreement”), substantially in the form of Exhibit C.
(l) Merger Sub shall have received resignations in form and substance satisfactory to Merger Sub from the directors and officers of DBA Group listed on Schedule 9.2(m), which shall include a release of all Claims against DBA Group.
(m) DBA Group and Seller shall have changed the persons authorized to act or deal in connection with each deposit account, line of credit and safe deposit box of DBA Group to be only those persons identified on Schedule 9.2(l) hereto.
(n) Zanett’s Executive Committee shall have approved the Agreement and the Surviving Corporation transactions contemplated hereby.
(o) Cygnus Holdings, LLC as landlord, and Merger Sub, as tenant, shall have executed a lease for the office space located at 4080 XxXxxxxx Ferry Road, Building 200, Suite 203, Alpharetta, Georgia, substantially in the form attached to conduct its business in all this Agreement as Exhibit D.
(p) LaSalle Bank National Association shall have approved the Agreement and the transactions contemplated hereby.
(q) There shall have been no material respects after adverse change to DBA Group from the Closing Date on date hereof to the same basis as it is currently conducted; and - the Dissenting Shares, if any, will not include more than 10% of the issued and outstanding shares of Common StockClosing.
Appears in 1 contract
Samples: Merger Agreement (Zanett Inc)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or or, if permitted by applicable Law, waiver by Merger Sub of the following further conditions: - the :
(a) The Company will shall have performed, in all material respects, all of its obligations hereunder required under the Merger Agreement to be performed by it at or prior to the Effective Time Time; each of the representations and warranties of the Company contained in the Merger this Agreement (i) that are qualified by materiality or by Company Material Adverse Effect will shall be true and correct, correct and (ii) that are not so qualified will by materiality 25 102 or by Company Material Adverse Effect shall be 55 61 true and correct in all material respects respects, in each case, as of the date of the Merger Agreement hereof and as of the Closing DateDate as if made at and as of such time; - and Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this Section 8.02(a);
(b) Saw Mill, Parent and Merger Sub will shall have received an opinion of counsel from Michxxx Xxxx & Xriexxxxx XXX, which opinion of counsel shall be substantially in the Special Committee's legal counsel; - the form attached hereto as Exhibit H;
(c) Surviving Corporation will shall have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity other financing sufficient to complete consummate the Merger (including the payment of the Merger Consideration, the Option Consideration and the repayment of indebtedness for borrowed money of the Company or any of its subsidiaries that is required to be repaid as a result of the Transactions, if any) and to pay all fees and expenses in connection with the Merger therewith and to provide working capital for the Surviving Corporation; - since ;
(d) Since December 31, 1998, no event has shall have occurred or will occur which has or which would reasonably be expected to have a Company Material Adverse Effect; - all ;
(e) All Company Stock Options will shall be extinguished and, as of immediately prior to Closing, the Company will shall have no liability or obligation with respect to any such Company Stock Options; - , except as provided in Section 2.03;
(f) Except as set forth in the Merger Agreementon Exhibit D hereto, all outstanding indebtedness for borrowed money of the Company or any of its subsidiaries will shall be paid in full, (ii) any letters of credit of the Company or any of its subsidiaries will shall be terminated and (iii) the Company will shall have obtained (x) the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, indebtedness and (y) the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - . At the Closing, the Company will shall provide or arrange to be provided to Merger Sub all releases and other documents in form and substance reasonably satisfactory to Merger Sub demonstrating the release of such liens, encumbrances and guarantees;
(g) The Company shall have obtained all consents, authorizations, approvals and waivers from third parties parties, in form reasonably acceptable to Merger Sub (x) which are necessary in order to enable (i) the completion consummation of the transactions contemplated by the Merger Agreement Transactions and (ii) the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conductedconducted prior to the date hereof, in each case, except for those failure of which to obtain would not have, individually or in the aggregate, a Company Material Adverse Effect and (y) which are listed on Exhibit E hereto; and - the and
(h) The Dissenting Shares, if any, will shall not include more greater than 10% of the issued and outstanding shares of Company Common Stock.
Appears in 1 contract
Samples: Proxy Statement (Jason Inc)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or or, if permitted by applicable Law, waiver by Merger Sub of the following further conditions: - the :
(i) The Company will shall have performed, performed in all material respects, respects all of its obligations hereunder required under the Merger Agreement to be performed by it at or prior to the Effective Time Time; (ii) each of the representations and warranties of the Company contained in the Merger this Agreement that are qualified by materiality or by Company Material Adverse Effect will shall be true and correct, and that are not so qualified will be 55 61 true and correct in all material respects respects, except to the extent any representation and warranty is qualified by materiality, in which case such representation and warranty shall be true and correct in all respects, in each case as of the date of this Agreement; and (iii) Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this paragraph 8.02(a);
(b) Merger Agreement and as of Sub shall have received an opinion, dated on or about the Closing Date; - Saw Mill, Parent and Merger Sub will have received an opinion of counsel from to the Special Committee's legal Company (which may include in-house counsel; - ) containing the opinions set forth in EXHIBIT D hereto;
(c) Surviving Corporation will shall have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity financing sufficient to complete consummate the Merger Transactions and to pay all fees and expenses in connection with the Merger therewith and to provide working capital for the Surviving Corporation; - since December 31, 1998all on terms reasonably satisfactory to the Investor Group, the Surviving Corporation and Merger Sub, it being acknowledged that if the parties to the Commitment Letters or the Debt Financing other than the Surviving Corporation, Merger Sub or the Investor Group are prepared to perform thereon, or if a breach by the Investor Group or Merger Sub has been the cause of or resulted in the failure to obtain Debt Financing, the condition contained in this Section 8.02(c) shall be deemed to have been satisfied;
(d) Since the date of this Agreement, no event has shall have occurred (whether or will occur not described in any notice delivered by the Company pursuant to Section 7.07 of this Agreement) which has or which would reasonably be expected to have a Company Material Adverse Effect; - all ;
(e) The Company shall have amended its Certificate of Incorporation to provide for the Preference Amendment or filed an appropriate Certificate of Designation to provide for the Preference Stock;
(f) The Preference Exchange shall have been completed on the terms set forth in this Agreement;
(g) The Company shall have issued 632,900.4 shares of New Preference Stock to the Investor Group in exchange for the Equity Contribution;
(h) All Company Stock Options will and rights under the Company's Employee Stock Purchase Plan shall be extinguished and, as of immediately prior to the Closing, or shall by their own terms be extinguished at the Effective Time, and the Company will thereafter shall have no liability or obligation with respect to any such Company Stock Options; - Options or under the Company's Employee Stock Purchase Plan, except as set forth provided in the Merger Agreement, all outstanding indebtedness for borrowed money of the Section 2.03;
(i) The Company or any of its subsidiaries will be paid in full, any letters of credit of the Company or any of its subsidiaries will be terminated and the Company will have obtained the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, and the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - the Company will shall have obtained all consents, authorizations, approvals and waivers from third parties parties, in form reasonably acceptable to Merger Sub, which are necessary in order to enable (i) the completion consummation of the transactions contemplated Transactions by the Merger Agreement Company, and (ii) the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conducted; conducted prior to the date hereof, in each case, except for those the failure of which to obtain would not have a Company Material Adverse Effect;
(j) Merger Sub shall have obtained no later than thirty (30) days prior to the Closing, a commitment for an ALTA Owner's Title Insurance Policy 1970 Form B, or other form acceptable to Merger Sub, for each Owned Real Property identified by Merger Sub, issued by a title insurance company satisfactory to Merger Sub (the "TITLE COMPANY"), together with a copy of all documents referenced therein (the "TITLE COMMITMENTS"). At Closing, the Company shall have caused the Title Company to issue title insurance policies in accordance with the Title Commitments, insuring Merger Sub's legal, binding and - enforceable interest in the Owned Real Property as of the Closing Date with gap coverage from the Stockholders through the date of recording, subject to those encumbrances that do not have a materially adverse affect on the Owned Real Property, in such amount as Merger Sub reasonably determines to be the value of the Owned Real Property. Each of the Title Policies shall have the creditor's rights exception deleted, and shall include extended coverage endorsement and all other endorsements reasonably requested by Merger Sub. The Company shall use its reasonable efforts to assist Merger Sub in obtaining the Title Commitments, Title Policies and surveys in form and substance as set forth above, within the time periods set forth therein, including, without limitation, removing from title any liens or encumbrances which are not Permitted Encumbrances. The Company shall provide the Title Company with any affidavit, indemnity or other assurances requested by the Title Company to issue the Title Policies;
(k) Not more than seven percent (7.0%) of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall be Dissenting Shares, ; and
(l) The Company's Indebtedness shall not exceed the Maximum Indebtedness Amount; provided that if any, will (i) the Company's Indebtedness does not include exceed the Maximum Indebtedness Amount by more than 10% $5 million, (ii) Xxxxxx purchases the Receivables Note as contemplated by Section 7.16, and (iii) after giving effect to the repayment of Indebtedness as provided in Section 7.16 the Indebtedness of the issued and outstanding shares of Common StockCompany does not exceed the Maximum Indebtedness Amount, then the condition contained in this Section 8.02(l) shall be deemed to be satisfied.
Appears in 1 contract
Samples: Recapitalization Agreement and Plan of Merger (Westaff Inc)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or waiver by Merger Sub of the following further conditions: - the Company will have performed, in all material respects, all of its obligations required under the Merger Agreement to be performed by it at or prior to the Effective Time each of the representations and warranties of the Company contained in the Merger Agreement that are qualified by materiality or by Company Material Adverse Effect will be true and correct, and that are not so qualified will be 55 61 true and correct in all material respects as of the date of the Merger Agreement and as of the Closing Date; - Saw Mill, Parent and Merger Sub will have received an opinion of counsel from the Special Committee's legal counsel; - the Surviving Corporation will have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity financing sufficient to complete the Merger and to pay all fees and expenses in connection with the Merger and to provide working capital for the Surviving Corporation; - since December 31, 1998, no event has occurred or will occur which has or which would reasonably be expected to have a Company Material Adverse Effect; - all Company Stock Options will be extinguished and, as of immediately prior to Closing, the Company will have no liability or obligation with respect to any such Company Stock Options; - except as set forth in the Merger Agreement, all outstanding indebtedness for borrowed money of the Company or any of its subsidiaries will be paid in full, any letters of credit of the Company or any of its subsidiaries will be terminated and the Company will have obtained the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, and the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; 50 56 - the Company will have obtained all consents, authorizations, approvals and waivers from third parties which are necessary in order to enable the completion of the transactions contemplated by the Merger Agreement and the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conducted; and - the Dissenting Shares, if any, will not include more than 10% of the issued and outstanding shares of Common Stock.
Appears in 1 contract
Samples: Proxy Statement (Jason Inc)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or or, if permitted by applicable Law, waiver by Merger Sub of the following further conditions: - the :
(a) The Company will shall have performed, in all material respects, all of its obligations hereunder required under the Merger Agreement to be performed by it at or prior to the Effective Time Time; each of the representations and warranties of the Company contained in the Merger this Agreement (i) that are qualified by materiality or by Company Material Adverse Effect will shall be true and correct, correct and (ii) that are not so qualified will by materiality or by Company Material Adverse Effect shall be 55 61 true and correct in all material respects respects, in each case, as of the date of the Merger Agreement hereof and as of the Closing DateDate as if made at and as of such time; - and Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this Section 8.02(a);
(b) Saw Mill, Parent and Merger Sub will shall have received an opinion of counsel from Michxxx Xxxx & Xriedrich LLP, which opinion of counsel shall be substantially in the Special Committee's legal counsel; - the form attached hereto as Exhibit H;
(c) Surviving Corporation will shall have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity other financing sufficient to complete consummate the Merger (including the payment of the Merger Consideration, the Option Consideration and the repayment of indebtedness for borrowed money of the Company or any of its subsidiaries that is required to be repaid as a result of the Transactions, if any) and to pay all fees and expenses in connection with the Merger therewith and to provide working capital for the Surviving Corporation; - since ;
(d) Since December 31, 1998, no event has shall have occurred or will occur which has or which would reasonably be expected to have a Company Material Adverse Effect; - all ;
(e) All Company Stock Options will shall be extinguished and, as of immediately prior to Closing, the Company will shall have no liability or obligation with respect to any such Company Stock Options; - , except as provided in Section 2.03;
(f) Except as set forth in the Merger Agreementon Exhibit D hereto, all outstanding indebtedness for borrowed money of the Company or any of its subsidiaries will shall be paid in full, (ii) any letters of credit of the Company or any of its subsidiaries will shall be terminated and (iii) the Company will shall have obtained (x) the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, indebtedness and (y) the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - . At the Closing, the Company will have obtained shall provide or arrange to be provided to Merger Sub all consentsreleases and other documents in form and substance reasonably satisfactory to Merger Sub demonstrating the release of such liens, authorizations, approvals encumbrances and waivers from third parties which are necessary in order to enable the completion of the transactions contemplated by the Merger Agreement and the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conducted; and - the Dissenting Shares, if any, will not include more than 10% of the issued and outstanding shares of Common Stock.guarantees;
Appears in 1 contract
Samples: Proxy Statement (Jason Inc)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or or, if permitted by applicable Law, waiver by Merger Sub of the following further conditions: - the :
(a) The Company will shall have performed, in all material respects, all of its obligations hereunder required under the Merger Agreement to be performed by it at or prior to the Effective Time Time; each of the representations and warranties of the Company contained in the Merger this Agreement (i) that are qualified by materiality or by Company Material Adverse Effect will shall be true and correct, correct and (ii) that are not so qualified will by materiality or by Company Material Adverse Effect shall be 55 61 true and correct in all material respects respects, in each case, as of the date of the Merger Agreement hereof and as of the Closing DateDate as if made at and as of such time; - and Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this Section 8.02(a);
(b) Saw Mill, Parent and Merger Sub will shall have received an opinion of counsel from Michxxx Xxxx & Xriexxxxx XXX, which opinion of counsel shall be substantially in the Special Committee's legal counsel; - the form attached hereto as Exhibit H;
(c) Surviving Corporation will shall have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity other financing sufficient to complete consummate the Merger (including the payment of the Merger Consideration, the Option Consideration and the repayment of indebtedness for borrowed money of the Company or any of its subsidiaries that is required to be repaid as a result of the Transactions, if any) and to pay all fees and expenses in connection with the Merger therewith and to provide working capital for the Surviving Corporation; - since ;
(d) Since December 31, 1998, no event has shall have occurred or will occur which has or which would reasonably be expected to have a Company Material Adverse Effect; - all ;
(e) All Company Stock Options will shall be extinguished and, as of immediately prior to Closing, the Company will shall have no liability or obligation with respect to any such Company Stock Options; - , except as provided in Section 2.03;
(f) Except as set forth in the Merger Agreementon Exhibit D hereto, all outstanding indebtedness for borrowed money of the Company or any of its subsidiaries will shall be paid in full, (ii) any letters of credit of the Company or any of its subsidiaries will shall be terminated and (iii) the Company will shall have obtained (x) the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, indebtedness and (y) the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - . At the Closing, the Company will shall provide or arrange to be provided to Merger Sub all releases and other documents in form and substance reasonably satisfactory to Merger Sub demonstrating the release of such liens, encumbrances and guarantees;
(g) The Company shall have obtained all consents, authorizations, approvals and waivers from third parties parties, in form reasonably acceptable to Merger Sub (x) which are necessary in order to enable (i) the completion consummation of the transactions contemplated by the Merger Agreement Transactions and (ii) the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conductedconducted prior to the date hereof, in each case, except for those failure of which to obtain would not have, individually or in the aggregate, a Company Material Adverse Effect and (y) which are listed on Exhibit E hereto; and - the and
(h) The Dissenting Shares, if any, will shall not include more greater than 10% of the issued and outstanding shares of Company Common Stock.
Appears in 1 contract
Samples: Merger Agreement (Jason Inc)
Conditions to the Obligations of Merger Sub. The obligations of Merger Sub to consummate the Merger are subject to the satisfaction or or, if permitted by applicable Law, waiver by Merger Sub of the following further conditions: - the :
(i) The Company will shall have performed, performed in all material respects, respects all of its obligations hereunder required under the Merger Agreement to be performed by it at or prior to the Effective Time Time; (ii) each of the representations and warranties of the Company contained in the Merger this Agreement that are qualified by materiality or by Company Material Adverse Effect will shall be true and correct, and that are not so qualified will be 55 61 true and correct in all material respects respects, except to the extent any representation and warranty is qualified by materiality, in which case such representation and warranty shall be true and correct in all respects, in each case as of the date of this Agreement; and (iii) Merger Sub shall have received a certificate signed by an executive officer of the Company as to compliance with the conditions set forth in this paragraph 8.02(a);
(b) Merger Agreement and as of Sub shall have received an opinion, dated on or about the Closing Date; - Saw Mill, Parent and Merger Sub will have received an opinion of counsel from to the Special Committee's legal Company (which may include in-house counsel; - ) containing the opinions set forth in Exhibit D hereto;
(c) Surviving Corporation will shall have obtained the Debt and Preferred Equity Financing on the terms and conditions set forth in the Commitment Letters or otherwise obtained debt and/or equity financing sufficient to complete consummate the Merger Transactions and to pay all fees and expenses in connection with the Merger therewith and to provide working capital for the Surviving Corporation; - since December 31, 1998all on terms reasonably satisfactory to the Investor Group, the Surviving Corporation and Merger Sub, it being acknowledged that if the parties to the Commitment Letters or the Debt Financing other than the Surviving Corporation, Merger Sub or the Investor Group are prepared to perform thereon, or if a breach by the Investor Group or Merger Sub has been the cause of or resulted in the failure to obtain Debt Financing, the condition contained in this Section 8.02(c) shall be deemed to have been satisfied;
(d) Since the date of this Agreement, no event has shall have occurred (whether or will occur not described in any notice delivered by the Company pursuant to Section 7.07 of this Agreement) which has or which would reasonably be expected to have a Company Material Adverse Effect; - all ;
(e) The Company shall have amended its Certificate of Incorporation to provide for the Preference Amendment or filed an appropriate Certificate of Designation to provide for the Preference Stock;
(f) The Preference Exchange shall have been completed on the terms set forth in this Agreement;
(g) The Company shall have issued 632,900.4 shares of New Preference Stock to the Investor Group in exchange for the Equity Contribution;
(h) All Company Stock Options will and rights under the Company's Employee Stock Purchase Plan shall be extinguished and, as of immediately prior to the Closing, or shall by their own terms be extinguished at the Effective Time, and the Company will thereafter shall have no liability or obligation with respect to any such Company Stock Options; - Options or under the Company's Employee Stock Purchase Plan, except as set forth provided in the Merger Agreement, all outstanding indebtedness for borrowed money of the Section 2.03;
(i) The Company or any of its subsidiaries will be paid in full, any letters of credit of the Company or any of its subsidiaries will be terminated and the Company will have obtained the release of all liens or encumbrances on the capital stock of the Company or any of its subsidiaries and all assets of the Company or any of its subsidiaries securing indebtedness, and the release of all guarantees by the Company or any of its subsidiaries of indebtedness for borrowed money; - the Company will shall have obtained all consents, authorizations, approvals and waivers from third parties parties, in form reasonably acceptable to Merger Sub, which are necessary in order to enable (i) the completion consummation of the transactions contemplated Transactions by the Merger Agreement Company, and (ii) the Surviving Corporation to conduct its business in all material respects after the Closing Date on the same basis as it is currently conducted; conducted prior to the date hereof, in each case, except for those the failure of which to obtain would not have a Company Material Adverse Effect;
(j) Merger Sub shall have obtained no later than thirty (30) days prior to the Closing, a commitment for an ALTA Owner's Title Insurance Policy 1970 Form B, or other form acceptable to Merger Sub, for each Owned Real Property identified by Merger Sub, issued by a title insurance company satisfactory to Merger Sub (the "Title Company"), together with a copy of all documents referenced therein (the "Title Commitments"). At Closing, the Company shall have caused the Title Company to issue title insurance policies in accordance with the Title Commitments, insuring Merger Sub's legal, binding and - enforceable interest in the Owned Real Property as of the Closing Date with gap coverage from the Stockholders through the date of recording, subject to those encumbrances that do not have a materially adverse affect on the Owned Real Property, in such amount as Merger Sub reasonably determines to be the value of the Owned Real Property. Each of the Title Policies shall have the creditor's rights exception deleted, and shall include extended coverage endorsement and all other endorsements reasonably requested by Merger Sub. The Company shall use its reasonable efforts to assist Merger Sub in obtaining the Title Commitments, Title Policies and surveys in form and substance as set forth above, within the time periods set forth therein, including, without limitation, removing from title any liens or encumbrances which are not Permitted Encumbrances. The Company shall provide the Title Company with any affidavit, indemnity or other assurances requested by the Title Company to issue the Title Policies;
(k) Not more than seven percent (7.0%) of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall be Dissenting Shares, ; and
(l) The Company's Indebtedness shall not exceed the Maximum Indebtedness Amount; provided that if any, will (i) the Company's Indebtedness does not include exceed the Maximum Indebtedness Amount by more than 10% $5 million, (ii) Stovxx xxxchases the Receivables Note as contemplated by Section 7.16, and (iii) after giving effect to the repayment of Indebtedness as provided in Section 7.16 the Indebtedness of the issued and outstanding shares of Common Stock.Company does not exceed
Appears in 1 contract
Samples: Recapitalization Agreement and Plan of Merger (Cornerstone Equity Investors Iv Lp)
