Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company: (a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement; (b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects; (c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled; (d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect; (e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative; (f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance; (g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date; (h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the First Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the CompanyCompany and, to the extent the Required Transaction has not closed, Solaria:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Section 5.12 shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date; provided, however, that as used in this Section 9.3(a)(i), “material” shall mean, with respect to any number required to be set forth in Section 5.12, any deviations which, in the aggregate, are in excess of 5% of the outstanding capital stock of the Acquiror on a fully diluted basis, (ii) the representations and warranties of Acquiror contained in Section 5.2 and Section 5.13 shall be true and correct in all respects as of the Closing Date, except for changes after the with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects at and as of such date of this Agreement which are contemplated or expressly permitted by this Agreement, and (iiiii) each of the other representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casethe case of this clause (iii), (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after a material adverse effect on Acquiror’s ability to consummate the date of this Agreement which are transactions contemplated or expressly permitted by this Agreement;
(b) Each each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have filed a certificate of incorporation with the Secretary of State of Delaware and adopted bylaws (in substantially the forms attached as Exhibits A and B hereto, respectively, with such changes as many be agreed in writing by Xxxxxxxx and the Company);
(d) the Domestication shall have been completed as provided in Section 7.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company;
(e) [Reserved]; and
(f) Acquiror shall have delivered to the Company a certificate certificate, dated the Closing Date and signed by an officer of the Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Business Combination Agreement (Freedom Acquisition I Corp.)
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) Representations and Warranties.
(i) Each of the representations and warranties of Acquiror LIVK contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (without giving effect to any materiality or “LIVK Material Adverse Effect” or similar qualifications therein), other than the representations and warranties set forth in Section 6.01 (Corporate Organization), Section 6.02 (Due Authorization), Section 6.06 (LIVK Capitalization), Section 6.11 (Brokers’ Fees), and Section 6.14(b) (Absence of Changes (No LIVK Material Adverse Effect)), shall be true and correct in all material respects, except for Sections 5.9 as of the date of this Agreement and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that timesuch date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that such failures to be true and correct as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have an Acquiror a LIVK Material Adverse Effect Effect.
(ii) The representations and warranties of LIVK contained in Section 6.14(b) (yAbsence of Changes (No LIVK Material Adverse Effect)) changes after shall be true and correct as of the date of this Agreement which are contemplated or expressly permitted by this Agreement;and as of the Closing Date, as if made anew at and as of such date.
(biii) Each of the covenants representations and warranties of Acquiror LIVK contained in Section 6.01 (Corporate Organization), Section 6.02 (Due Authorization), Section 6.06 (LIVK Capitalization), and Section 6.11 (Brokers’ Fees) (without giving effect to any materiality or “LIVK Material Adverse Effect” or similar qualifications therein), shall be performed true and correct in all respects except for de minimis inaccuracies as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the and as of Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company as if made anew at and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ as of such issuance;
date (g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior except to the Closingextent that any such representation and warranty speaks expressly as of an earlier date, in which case such representation and all such funds released from the Trust Account warranty shall be available to Acquiror true and correct in all respects except for payment de minimis inaccuracies as of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedsuch earlier date).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate fulfill its obligations under this Agreement, including without limitation the Merger is obligations set forth in Section 2.1 hereof, shall be subject to the satisfaction or waiver prior to the Closing of the following additional conditions, any one or more of which provided that the condition set forth at paragraph (e) below may not be waived in writing by without the Companyprior written consent of the Purchasers:
(a) (i) Each of the representations and warranties of Acquiror the Purchasers contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date as if made anew at on the Closing Date, and as the Company shall have received a certificate signed by each Purchaser who is an individual and by a duly authorized officer of that time, except with respect each other Purchaser to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;foregoing effect.
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror Purchaser shall have delivered to the Company $500,000 per Unit (subject to pro rata adjustment in the case of any Fractional Unit) for each of the Units to be issued and sold by the Company and purchased by the Purchaser pursuant to this Agreement, as set forth on Exhibit A hereto, such amount to be payable (i) by wire transfer of immediately available funds to an account with a certificate signed bank designated by an officer the Company, by notice to each of Acquiror, dated the Purchasers to be provided no later than two Business Days prior to the Closing Date, certifying that, or (ii) a federal (same day) funds check payable to the knowledge and belief order of the Company.
(c) No party to this Agreement (other than the Company) shall be in material breach of this Agreement unless such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) breach shall have been fulfilled;waived in writing by each of the other parties to this Agreement.
(d) Since The Company shall have received such other certificates, opinions, documents and instruments related to the date transactions contemplated hereby as may have been reasonably required by the Company and are customary for transactions of this Agreement through type, and all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the Closing Datetransactions contemplated by this Agreement, there shall not have been any Acquiror Material Adverse Effect;be reasonably satisfactory in form and substance to the Company and its counsel.
(e) The Escrow Agreement Company shall have been duly executed by all parties other than received, in form and substance reasonably satisfactory to the Company, an opinion, addressed to it and dated the Closing Date of Xxxxx, Xxxxx & Xxxxx, counsel for the Company and Holder Representative;
(fthe Bank, to the effect that there is "substantial authority" within the meaning of Treasury Regulation 1.6662-4(d) The shares of Acquiror Common Stock to be issued in connection with support the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all conclusion that consummation of the funds contained transactions contemplated by Section 2.1 hereof will not result in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment a change of ownership of the Aggregate Cash Consideration and Company for purposes of Section 382 of the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCode.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate issue, sell and deliver the Merger is Shares to the Investors are subject to the satisfaction fulfillment or waiver on or before the Closing of each of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the all representations and warranties of Acquiror contained the Investors in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in (disregarding all material respects, except for Sections 5.9 qualifications or limitations as to materiality) as of the date hereof and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at Date (except to the extent that any such representation and warranty expressly speaks as of that time, except with respect to such representations and warranties which speak as to an earlier date, in which representations case such representation and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) warranty shall be true and correct as of the Closing Date, as if made anew at and as of that timesuch earlier date), except with respect to where failure of such representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(b) the Investors shall have paid to the Company the Purchase Price, net of any reduction thereto pursuant to Section 5.1(g);
(c) the Investors shall have executed and delivered the Registration Rights Agreement;
(d) the Company shall have raised at least $25.0 million in gross proceeds in the Rights Offering;
(e) The Escrow Agreement the Company shall have been duly executed by all parties other than obtained the Company and Holder RepresentativeShareholder Approval;
(f) The shares of Acquiror Common Stock the Shares to be issued in connection with to the Merger shall have been approved for listing Investors at Closing and the shares of Common Stock issued as part of the Rights Offering will represent, upon issuance and on NASDAQan as-if converted basis, subject not more than 46.6% of the shares of Common Stock outstanding after giving effect to official notice from NASDAQ the issuance of the Shares and the issuance of the shares of Common Stock as part of the Rights Offering, such issuance;percentage to be calculated (A) without taking into account shares of Common Stock issued upon exercise of stock options outstanding as of December 18, 2009 (B) without giving effect to the repurchase or acquisition by the Company of any shares of Capital Stock since December 18, 2009 and (C) based on the assumption that at the Rights Offering subscription price the Company raised only $25 million as part of the Rights Offering; and
(g) The Nominee Director designated pursuant to Section 7.8 the Credit Agreement Amendment shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board become effective the first Business Day or will become effective immediately after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ruths Hospitality Group, Inc.)
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger Transactions at the Closing is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) The representations and warranties contained in Section 5.1 (iCompany Organization), Section 5.2 (Due Authorization), Section 5.11 (Trust Account), and Section 5.19 (Brokers’ Fees) shall each be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or other similar materiality qualification set forth therein) as of the Closing Date as though made on the Closing Date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date. The representation and warranty in Section 5.5 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies as of the Closing Date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct other than de minimis inaccuracies as of such earlier date. The representation and warranty in Section 5.13 (Absence of Changes) shall be true and correct in all respects as of the Closing Date. Each of the other representations and warranties of Acquiror Parent contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” or other similar materiality qualification set forth therein) as of the Closing Date, as if made anew at and as of except to the extent that time, except with respect to any such representations and warranties which speak expressly speaks as to an earlier date, in which case such representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, has not had, and would not reasonably be expected to have an Acquiror have, a Parent Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementEffect;
(b) Each of the covenants of Acquiror Parent, First Merger Sub and Second Merger Sub to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror Since the date of this Agreement, there shall not have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledoccurred any Parent Material Adverse Effect that is continuing;
(d) Since the date of this Agreement through the Closing Date, there The Domestication shall not have been any Acquiror Material Adverse Effectcompleted as provided in Section 7.9, and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company;
(e) The Escrow Agreement If required pursuant to the terms hereof and thereof, the Backstop Subscription shall have been duly executed by all parties other than consummated pursuant to, and to the Company and Holder Representative;extent required in accordance with the terms of, the Backstop Subscription Agreement; and
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account Available Parent Cash shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedno less than Two Hundred Million Dollars ($200,000,000).
Appears in 1 contract
Samples: Business Combination Agreement (RedBall Acquisition Corp.)
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction (or, to the extent legally permissible, waiver) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each Parent shall have performed in all material respects all of its obligations hereunder required to be performed by it as of or prior to the Closing Date, (ii) (A) the representations and warranties of Acquiror contained Parent and Merger Subsidiary set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement which are qualified by a "Parent Material Adverse Effect" qualification shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew so qualified at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and at and as of the Closing Date as though made at and as of the Closing Date and (iiB) each of the representations and warranties of Acquiror contained Parent and Merger Subsidiary set forth in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror which are not qualified by a "Parent Material Adverse Effect or any similar Effect" qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such datethe date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for, in each case, (x) inaccuracies or omissions that for such failures to be true and correct as would not, individually or in the aggregate, reasonably be expected to have an Acquiror a Parent Material Adverse Effect Effect; PROVIDED, HOWEVER, that, with respect to clauses (A) and (yB) changes after hereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (A) or (B), as applicable), only as of such date of this Agreement which are contemplated or expressly permitted by this Agreementperiod;
(b) Each the Company shall have received an opinion of Wachtell, Lipton, Rosen & Katz (or such othex xxxnsex xxasonably acceptable to the Company), on the basis of representations and assumptions set forth or referred to in such opinion, dated as of the covenants of Acquiror to be performed as of or prior Closing Date, to the Closing effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code. In rendering such opinion, such counsel shall have been performed in all material respects;be entitled to rely upon representations of officers of Parent, the Company or others reasonably requested by counsel; and
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since since the date of this Agreement through the Closing DateAgreement, there shall not have been any Acquiror event, occurrence, development or state of circumstances which, individually or in the aggregate, would be reasonably likely to have a Parent Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Merger Agreement (Unocal Corp)
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is transactions contemplated hereby shall be further subject to the satisfaction fulfillment of the following additional conditions, any one or more unless waived by such parties pursuant to Section 10.4 of which may be waived in writing by the Companythis Agreement:
(a) (i) Each of the All representations and warranties of Acquiror the Buyer contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, Material respects as of the Closing Date as though made as of such date (except for Sections 5.9 representations and 5.14warranties that are made as of a specific date and except for representations and warranties expressly qualified by “Materiality” or that constitute a breach only if they have a “Material Adverse Effect” or similar materiality qualifier, which all must be true and correct accurate in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at ). The Buyer shall have performed and as of that time, except complied with respect to such representations all covenants and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror agreements contained in this Agreement other than required to be performed and complied with by it at or prior to the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;Closing.
(b) Each of All documents required to have been executed and delivered to the covenants of Acquiror to be performed as of Company at or prior to the Closing shall have been performed in all material respects;so executed and delivered, whether or not such documents have been or will be executed and delivered by the other parties contemplated thereby.
(c) Acquiror The Company shall have received from Xxxx Xxxxxx Xxxxxx & Xxxxxx, Inc., a letter, dated not more than five Business Days prior to the Proxy Statement, that the Merger Consideration is fair, from a financial point of view, to the holders of the Company’s Shares.
(d) As of the Closing Date, the Company shall have received the following documents with respect to the Buyer:
(i) a certificate of its corporate existence issued by the jurisdiction of its incorporation as of a recent date and a certificate of existence or authority as a foreign corporation issued as of a recent date by each of the jurisdictions in which it is qualified to do business as a foreign corporation;
(ii) a true and complete copy of its certificate of incorporation and all amendments thereto, certified by the jurisdiction of its incorporation as of a recent date;
(iii) a true and complete copy of its bylaws, certified by its Secretary or an Assistant Secretary;
(iv) a certificate from its Secretary or an Assistant Secretary certifying that its articles of incorporation have not been amended since the date of the certificate described in subsection (i) above and that nothing has occurred since such date that would adversely affect its existence;
(v) a true and complete copy of the resolutions of its board of directors and shareholders authorizing the execution, delivery and performance of this Agreement, and all instruments and documents to be delivered in connection herewith, and the transactions contemplated hereby, certified by its Secretary or an Assistant Secretary;
(vi) a certificate from its Secretary or an Assistant Secretary certifying the incumbency and signatures of its officers who will execute documents at the Closing or who have executed this Agreement; and
(vii) evidence of Buyer’s compliance with Section 6.2(b) and the penultimate sentence of Section 2.7(c).
(e) The Exchange Agent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated as of the Closing Date, certifying that, to the knowledge effect that the Exchange Agent has received from the Buyer appropriate instructions and belief authorization for the Exchange Agent to issue a sufficient number of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Buyer Stock to be issued in connection with the Merger shall have been approved exchange for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCompany Shares.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate and the Merger is Sole Shareholder are, at the Company’s and Shareholder’s options, subject to the satisfaction fulfillment of the following additional conditions, any one or more of which may be waived in writing by the Company:conditions hereinafter set forth.
(a) (i) Each Purchaser shall have performed and complied with all of the conditions and agreements required by this Agreement to be performed or complied with by it prior to the Effective Time in all material respects.
(b) The representations and warranties of Acquiror the Purchaser contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement herein shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be have been true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, hereof and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at Date and as the Purchaser shall have received a certificate of that time, except with respect the President of the Company to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;effect.
(c) Acquiror The Purchaser’s shareholders shall have delivered approved the Merger in accordance with Delaware law and Certificates of Designation shall have been filed as amendments to the Company a certificate signed by an officer Certificate of Acquiror, dated Incorporation of Purchaser authorizing the Closing Date, certifying that, issuance of the shares of Preferred Stock required to be issued in accordance with the knowledge and belief provisions of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;1.05 hereof.
(d) Since There shall have been no material adverse change in the business, properties or financial condition of the Purchaser from such condition on the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;hereof.
(e) The Escrow On the Closing Date (i) there shall be no injunction, restraining order, or order of any nature issued by a court of competent jurisdiction which directs that any transaction contemplated by this Agreement shall have been duly executed not be consummated and (ii) there shall be no suit, action, investigation or other proceeding pending or threatened by all parties other than any governmental agency or private party seeking to restrain or prohibit the Company and Holder Representative;consummation of any material transaction contemplated hereby or the obtaining of any material amount of damages from any party hereto or any officer or director of any such party, in connection with the consummation the Merger.
(f) The shares No shareholders of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror Purchaser shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror any written demand for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedan appraisal.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is Transactions are subject to the satisfaction or waiver of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each of the representations and warranties of Acquiror Parent and Merger Sub contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Article 4 shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be have been true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at except for those representations and warranties that address matters only as of that time, except with respect to the date of this Agreement or any other particular date (in which case such representations and warranties which speak shall have been true and correct in all material respects as to an earlier of such particular date), which it being understood that, for purposes of determining the accuracy of such representations and warranties, all qualifications based on the word “material” or similar phrases contained in such representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreementdisregarded;
(b) Each each of Parent and Merger Sub shall have performed in all material respects all of the covenants of Acquiror and agreements required to be performed as of by it under this Agreement at or prior to the Closing shall have been performed in all material respectsClosing;
(c) Acquiror the Company shall have obtained the Requisite Stockholder Approval;
(d) the applicable waiting periods, if any, under the HSR Act shall have expired or been terminated;
(e) no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court or agency of competent jurisdiction or other Law shall be threatened, pending, shall have been issued or shall be in effect which prohibits, restrains or renders illegal the consummation of the Transactions or would cause the Transactions to be rescinded;
(f) Parent, the Stockholders’ Representative and the Paying Agent shall have executed and delivered the Paying Agent Agreement;
(g) Parent, the Stockholders’ Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(h) Parent and Merger Sub shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated the Closing Date, certifying that, to stating that the knowledge and belief of such officer, the conditions preconditions specified in Section 9.3(aSections 8.02(a) and Section 9.3(b) 8.02(b), as they relate to Parent and Merger Sub, have been fulfilled;satisfied; and
(di) Since Parent or the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror Surviving Corporation shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained payments set forth in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedSection 2.09(b).
Appears in 1 contract
Samples: Merger Agreement (Bankrate, Inc.)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate consummate, or cause to be consummated, the First Merger is are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror contained Buyer and Merger Subs in Sections 5.1this Agreement (other than the Fundamental Representations of Buyer) shall be true and correct (without giving regard to any qualifications or limitations as to “materiality” or “Material Adverse Effect”, 5.2, 5.3, 5.9, 5.14 (and words of similar import set forth therein) in all respects as of the “Acquiror Fundamental Representations”) date of this Agreement shall and at and as of the Closing with the same effect as though made at and as of such time, except where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effect on Buyer and (ii) the Fundamental Representations of Buyer will be true and correct in all material respects, except for Sections 5.9 respects as of the date of this Agreement and 5.14, which all be true at and correct in all but de minimis respects, in each case as of the Closing Date, with the same effect as if though made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such datetime; provided, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreementhowever, and (ii) each of the that representations and warranties that are made as of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect a particular date or any similar qualification or exception) shall period will be true and correct as of (in the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and manner set forth above) only as of such date, except for, in each case, (x) inaccuracies date or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;period.
(b) Each of the covenants of Acquiror Buyer and Merger Subs to be performed as of at or prior to the Closing shall have been performed in all material respects;.
(c) Acquiror Bxxxx shall have delivered to the Company a certificate signed by an officer of AcquirorBuyer, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, that the conditions specified in Section 9.3(a9.2(a) and Section 9.3(b9.2(b) have been fulfilled;fulfilled (the “Buyer Closing Certificate”).
(d) Since Bxxxx shall have delivered a duly executed counterpart to the date of this CVR Agreement through to the Closing Date, there shall not have been any Acquiror Material Adverse Effect;other parties thereto.
(e) The Escrow Agreement No Governmental Authority of competent jurisdiction shall have been duly executed enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which prohibits, restrains, enjoins or makes illegal the consummation of the Merger, and there shall not be any threatened, instituted or pending action by all parties other than a Governmental Authority seeking to prohibit, restrain or enjoin the Company and Holder Representative;
(f) The shares consummation of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with or other transactions under this Agreement and the transactions herein contemplatedAgreement.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each each of the representations and warranties of Acquiror contained set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement ARTICLE 6 shall be true and correct in all material respects, except for Sections 5.9 respects (without giving effect to any materiality or Material Adverse Effect qualifications) as of the date hereof and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if though made anew at and as of that timethe Closing, except with respect to the extent such representations and warranties expressly relate to a specified date (in which speak as to an earlier date, which case such representations and warranties shall be true and correct in all material respects at and the same manner as of such specified date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement);
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing Purchaser and Merger Sub shall have been performed in all material respectsrespects all the covenants and agreements required to be performed by each of them under this Agreement prior to the Closing;
(c) Acquiror any applicable waiting period under the HSR Act (and any extensions thereof) relating to the transactions contemplated by this Agreement shall have expired or been terminated;
(d) no Law or Order shall have been enacted or entered into after the date hereof that would prevent the consummation of the Merger, nor shall any Law or Order be promulgated, entered, enforced, enacted, issued or deemed applicable to the Merger by any Governmental Authority which directly or indirectly prohibits or makes illegal the consummation of the Merger;
(e) the Escrow Agreement shall have been duly executed by Purchaser and the Escrow Agent;
(f) Purchaser shall have delivered or caused to be delivered the Aggregate Initial Consideration (less the Sellers’ Representative Expense Fund and the Award Payments payable at the Closing pursuant to Section 2.6(d)) to the Payments Administrator pursuant to the terms of Section 2.7(b);
(g) Purchaser shall have paid or caused to be paid the Award Payments payable at the Closing to the Company, the applicable employing Subsidiary or the Section 102 Trustee, as applicable, pursuant to Section 2.6(d);
(h) Purchaser shall have delivered or caused to be delivered the Purchase Price Escrow Amount and the Indemnification Escrow Amount to the Escrow Agent;
(i) Purchaser shall have delivered the amount of the Sellers’ Representative Expense Fund to the Sellers’ Representative pursuant to Section 8.5(e);
(j) Purchaser shall have paid, or caused to be repaid, the Repaid Indebtedness and the Estimated Sellers’ Transaction Expenses (to the extent not paid by the Company prior to the Closing); and
(k) Purchaser shall have delivered to the Company a certificate signed by from an officer of Acquiroreach of Purchaser and Merger Sub in the form set forth as Exhibit E attached hereto, dated as of the Closing Date, certifying that, to stating that the knowledge and belief of such officer, the conditions applicable preconditions specified in Section 9.3(aSections 3.1(a) and Section 9.3(b(b) have been fulfilled;
(d) Since satisfied. Any condition specified in this Section 3.1 may be waived by the date of this Agreement through Company; provided, however, that no such waiver will be effective against the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly Company unless it is set forth in a writing executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCompany.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each Parent shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of Acquiror Parent contained in Sections 5.15.02, 5.25.05, 5.3, 5.95.13, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement and 5.20 shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Effective Time as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true in all material respects as of such earlier date), (iii) the other representations and warranties of Parent contained in this Agreement and in any certificate or other writing delivered by Parent pursuant hereto (which representations and warranties shall, for purposes of this Section 9.03(a) only, be read without any qualification contained therein as to materiality or Parent Material Adverse Effect) shall be true at and as of the Effective Time as if made at and as of such time (except forto the extent that any such representation and warranty expressly speaks as of an earlier date, in each casewhich case such representation and warranty (as so read) shall be true as of such earlier date), (x) inaccuracies or omissions that would notexcept where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have an Acquiror a Parent Material Adverse Effect and (yiv) changes after the date Company shall have received a certificate signed by an executive officer of this Agreement which are contemplated or expressly permitted by this AgreementParent to the foregoing effect;
(b) Each each of the covenants of Acquiror to be performed as of or prior to Escrow Agreement and the Closing Registration Rights Agreement shall have been performed executed and delivered by Parent, and the Rights Agreement shall have been amended, and each of the foregoing shall be in all material respectsfull force and effect;
(c) Acquiror neither Parent nor any of its Subsidiaries shall have delivered suffered a mining catastrophe that has involved, or would be reasonably likely to the Company involve, a certificate signed by an officer loss of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;lives; and
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement Company shall have been duly executed by received all parties other than documents it may reasonably request relating to the Company existence of Parent and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL Subsidiary and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made authority of Parent and Merger Subsidiary for this Agreement, all necessary in form and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior substance reasonably acceptable to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCompany.
Appears in 1 contract
Samples: Merger Agreement (Patriot Coal CORP)
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true Parent and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror Acquisition contained in this Agreement or in any other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties document delivered pursuant hereto shall be true and correct at and as of the Effective Time (except to the extent such representations specifically related to an earlier date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably which case such representations shall be expected to have an Acquiror Material Adverse Effect true and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed correct as of or prior to such earlier date) and, at the Closing shall have been performed in all material respects;
(c) Acquiror Closing, Parent and Acquisition shall have delivered to the Company a certificate signed by an officer to that effect;
(b) each of Acquiror, dated the Closing Date, certifying that, covenants and obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the knowledge terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, Parent and belief Acquisition shall have delivered to the Company a certificate to that effect;
(c) 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, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Material Adverse Effect on Parent. SECTION 5.3. Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations of the Company contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct 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 specifically related to an earlier date, in which case such representations shall be true and correct as of such officerearlier date) and, at the Closing, the conditions specified Company shall have delivered to Parent and Acquisition a certificate to that effect;
(b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in Section 9.3(aall material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect;
(c) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in order to permit the succession by the Surviving Corporation pursuant to the Merger to any obligation, right or interest of the Company or any subsidiary of the Company under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except for those for which failure to obtain such consents and approvals would not, in the reasonable opinion of Parent, individually or in the aggregate, have a Material Adverse Effect on the Company; provided that with respect to real property leases, this condition shall be deemed satisfied only if the Company shall have obtained landlord consents for real property leases with respect to (i) all leased Carrs Quality Centers (other than the Carrs Quality Center located in Kenai) and Section 9.3(b(ii) have been fulfilledother leased stores operated by the Company and its subsidiaries which, together with other owned stores, account for not less than 90% of the revenues generated by all such other stores, based on the twelve month period ended as of the date of the most recent quarter-end as of the date of determination;
(d) Since the Stockholder Support Agreement shall be in full force and effect;
(e) the Management Services Agreement (the "MSA") between the Company and Leonxxx Xxxxx & Xssociates ("LGA") shall be terminated concurrent with the Effective Time and the Company shall have no liability or obligation of any nature, whether or not accrued, contingent or otherwise under the MSA or otherwise to LGA, or any of its affiliates, except for the unpaid pro rata portion of the annual $450,000 fee payable under the MSA through the Effective Time; and
(f) since the date of this Agreement through the Closing DateAgreement, there shall not have been occurred any Acquiror change, event, occurrence, development or circumstance which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve Effect on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCompany.
Appears in 1 contract
Samples: Merger Agreement (Safeway Inc)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is Acquisition are subject to the satisfaction of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each Acquiror shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of Acquiror contained in Sections 5.15.01, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement 5.02 and 5.05 shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such datetime (other than such representations and warranties that by their terms address matters only as of another specified time, except for changes after the date which shall be true in all material respects only as of this Agreement which are contemplated or expressly permitted by this Agreement, such time) and (iiB) each of the other representations and warranties of Acquiror contained in this Agreement or in any certificate or other than the writing delivered by Acquiror Fundamental Representations pursuant hereto (disregarding any qualifications all materiality and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exceptionqualifications contained therein, except in the case of the representations and warranties contained in Section 5.11, for which such qualifiers shall not be disregarded) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak the Effective Time as to an earlier date, which representations and warranties shall be true and correct if made at and as of such datetime (other than representations and warranties that by their terms address matters only as of another specified time, except forwhich shall be true only as of such time), except, in each casethe case of this clause (B) only (but not with respect to the representations and warranties contained in Section 5.11), (x) inaccuracies or omissions that to the extent the failure of such representations and warranties to be true has not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have an Acquiror a Material Adverse Effect on Acquiror; and (yiii) changes after the Company shall have received a certificate signed by a senior executive officer of Acquiror to the foregoing effect; and
(b) except (i) as set forth in the Acquiror Disclosure Letter (subject to Section 11.05) or (ii) as disclosed in any Acquiror SEC Document filed prior to the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of excluding any disclosures in the covenants of Acquiror to be performed as of or prior to SEC Documents under the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquirorheadings “Risk Factors” and “General”), dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since since the date of this Agreement through the Closing DateAgreement, there shall not have been any Acquiror event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing Effect on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Agreement and Plan of Arrangement (Charles River Laboratories International Inc)
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror contained in Sections 5.1Section 5.12 (other than the representations and warranties set forth in Section 5.12(e) and Section 5.12(f)) shall be true and correct in all but de minimis respects as of the Closing Date as though made on and as of such date (or in the case of representations and warranties that address matters only as of a particular date, 5.2as of such date), 5.3, 5.9, 5.14 (ii) the “Acquiror Fundamental Representations”Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effects and Company Material Adverse Effects or any similar qualifications or exceptions) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case case, as of the Closing Date, as if made anew at and as Date (or in the case of that time, except with respect to such representations and warranties which speak that address matters only as to an earlier of a particular date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement), and (iiiii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, materiality and material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date as if though made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at on and as of such date (or in the case of representations and warranties that address matters only as of a particular date, as of such date), except for, in each case, (x) inaccuracies or omissions that have not had, and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected a material adverse effect on Acquiror or Acquiror’s ability to have an Acquiror Material Adverse Effect and (y) changes after consummate the date of this Agreement which are transactions contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects;
(c) Acquiror shall have delivered The Obagi Cash Consideration is equal to or greater than $327,500,000.00 minus the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Transaction Expenses Overage.
(d) Since Acquiror shall receive after completion of the date transactions contemplated hereby an amount of this Agreement through cash equal to or exceeding the Closing Date, there shall not have been any Minimum Available Acquiror Material Adverse Effect;Cash Amount.
(e) The Escrow Agreement Domestication shall have been duly executed by all parties other than completed as provided in Section 7.8, including that the Company and Holder Representative;
(f) The shares deregistration of Acquiror Common Stock to be issued in connection with the Merger Cayman Islands shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ filed with the Cayman Registrar and a copy of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 the certificate of continuance issued by the Jersey Registrar in relation thereto shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior delivered to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCompany.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is Investment and the other transactions contemplated hereby are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Companyfurther condition:
(ai) The OHA Parties, as applicable, shall have performed in all material respects all of their obligations hereunder required to be performed by them at or prior to the Closing, (ii) (iA) Each of the representations and warranties of Acquiror the OHA Parties contained in Sections 5.1Section 6.01, 5.2, 5.3, 5.9, 5.14 Section 6.06 and Section 6.07 shall be true in all respects as of the date hereof and as of the Closing as if made at and as of such time; and (B) the “Acquiror Fundamental Representations”) other representations and warranties of the OHA Parties contained in this Agreement shall be true as of the date hereof and correct in all material respects, except for Sections 5.9 at and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and time (ii) each of the other than representations and warranties that by their terms address matters only as of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materialityanother specified time, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) which shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and only as of such datetime), except for, in each casethe case of this clause (B) only, such failures to be true (xdisregarding all materiality and Material Adverse Effect qualifications contained therein) inaccuracies or omissions that as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have an Acquiror a Material Adverse Effect with respect to such OHA Party, and (yiii) changes after the date Company shall have received a certificate signed by an executive officer of this Agreement which are contemplated or expressly permitted by this Agreementeach OHA Party to the foregoing effect;
(b) Each of the covenants of Acquiror to The OHA Advisor shall be performed as of or prior to the Closing shall have been performed in compliance in all material respectsrespects with its obligations under the Advisers Act as of the date of the Closing;
(c) Acquiror The Investor shall have delivered to entered into the Company a certificate signed by an officer Stock Purchase Plan, effective as of Acquiror, dated the Closing Date, certifying that, to date of the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledClosing;
(d) Since The OHA Advisor shall have entered into the Replacement Advisory Agreement, effective as of the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;Closing; and
(e) The Escrow Agreement OHA Administrator shall have been duly executed by all parties other than entered into the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQReplacement Administration Agreement, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all as of the funds contained in the Trust Account disbursed to Acquiror immediately prior to date of the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Stock Purchase Agreement (NGP Capital Resources Co)
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true Parent and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror Acquisition contained in this Agreement (other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions those contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exceptionin Section 3.10) shall be true and correct as of the Closing Date, date hereof (except to the extent that the aggregate of all breaches thereof would not have a Material Adverse Effect on Parent) and as of the Effective Time with the same effect as if made anew at and as of that time, the Effective Time (except with respect to the extent such representations and warranties which speak as specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date, and in any event, subject to the foregoing Material Adverse Effect qualification) and the representations and warranties of Parent and Acquisition contained in Section 3.10 53 63 shall be true and correct in all respects at and as of such datethe Effective Time, except forand, in each caseat the Closing, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect Parent and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror Acquisition shall have delivered to the Company a certificate signed to that effect, executed by an officer two (2) executive officers of Acquiror, dated the Closing Date, certifying that, to the knowledge Parent and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledAcquisition;
(db) Since each of the date covenants and obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the terms of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly performed in all material respects at or before the Effective Time, and, at the Closing, Parent and Acquisition shall have delivered to the Company a certificate to that effect, executed by all parties other than two (2) executive officers of Parent and Acquisition; provided, however, that in connection with the Company compliance by Parent or Acquisition with any Applicable Law (including the HSR Act) or obtaining the consent or approval of any Governmental Entity whose consent or approval may be required to consummate the transactions contemplated by this Agreement, Parent shall not be (i) required, or be construed to be required, to sell or divest any material assets or business or to restrict in any material respect any business operations in order to obtain the consent or successful termination of any review of any such Governmental Entity regarding the transactions contemplated hereby or (ii) prohibited from owning, and Holder Representativeno material limitation shall be imposed on Parent's ownership of, any material portion of the Company's business or assets;
(fc) The the shares of Acquiror Parent Common Stock issuable to the Company's stockholders pursuant to this Agreement and such other shares required to be issued reserved for issuance in connection with the Merger shall have been approved for listing quotation on NASDAQthe Nasdaq National Market, subject to upon official notice from NASDAQ of such issuance;
(gd) The Nominee Director designated pursuant the Company shall have received the opinion of tax counsel to the Company or tax counsel to Parent to the effect that (i) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 7.8 368(a) of the Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably deems appropriate and such opinion shall not have been withdrawn or modified in any material respect; and
(e) there shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained no events, changes or effects, individually or in the Trust Account disbursed aggregate, with respect to Acquiror immediately prior Parent or its subsidiaries having, or that would reasonably be expected to the Closinghave, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplateda Material Adverse Effect on Parent.
Appears in 1 contract
Samples: Merger Agreement (Peoplesoft Inc)
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each The representations and warranties of Acquiror contained in Section 5.12 shall be true and correct in all but de minimis respects as of as of the date of this Agreement and as of the Closing Date as if made on the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement and (ii) each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (other than Section 5.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of Agreement or the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAncillary Agreements;
(b) Each of the covenants of Acquiror or Merger Sub to be performed as of or prior to the Closing shall have been performed in all material respects, provided, that for purposes of this Section 9.3(b), a covenant of Acquiror or Merger Sub shall only be deemed to have not been performed if Acquiror or Merger Sub has materially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, the Agreement End Date);
(c) Acquiror The Domestication shall have been completed as provided in Section 7.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledCompany;
(d) The amount of cash available in the Trust Account following the Acquiror Shareholders’ Meeting (net of any redemptions); plus the PIPE Investment Amount actually received by the Acquiror substantially concurrently with the Closing shall be equal to or greater than $175,000,000; and
(e) Since the date of this Agreement through the Closing DateAgreement, there shall not have been any occurred an Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedEffect that is continuing.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction (or, to the extent legally permissible, waiver) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each Parent shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror Parent contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date with the same force and effect as if made anew at on the Closing Date (provided that any such representation and warranty made as of that timea specific date shall be true and correct as of such specific date), except with respect to for such inaccuracies that individually or in the aggregate do not have a Material Adverse Effect on Parent as of the Closing Date and except for changes contemplated by this Agreement (it being understood that, for purposes of determining the accuracy of such representations and warranties which speak as to an earlier datewarranties, which all “Material Adverse Effect” qualifications and other qualifications based on the word “material” or similar phrases contained in such representations and warranties shall be true disregarded, and correct at any update of or modification to the Parent Disclosure Schedule made or proposed to have been made after the execution of this Agreement shall be disregarded), and as (iii) the Company shall have received a certificate signed by the chief executive officer of such date, except for, in each case, Parent to the foregoing effect;
(xb) inaccuracies there shall have not occurred any event or omissions change since the date of the Agreement that would not, individually has had or in the aggregate, could reasonably be expected to have an Acquiror a Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respectson Parent;
(c) Acquiror all Support Agreements and Lock-up Agreements required to be executed and delivered by the directors and executive officers of the Parent shall have been executed and delivered to the Company and such agreements shall be in full force and effect as of the Effective Time, and, as to the Support Agreements, as of a certificate signed by time prior to the mailing of the Joint Proxy Statement/Prospectus;
(d) as of the Closing Date, to be effective as of the Effective Time, the Board of Directors of Parent shall have been increased from six to nine directors, Mr. Xxxx van der Kaay and two others from among the Company’s current Board of Directors shall been appointed to the newly created vacancies on the Parent Board of Directors, and Mr. Xxxx van der Kaay shall have been elected Chairman of the Parent Board of Directors;
(e) the Company shall have received an officer opinion of AcquirorXxxxxxxxx Xxxxx Xxxxxxx & Xxxxx P.C. in form and substance reasonably satisfactory to the Company, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Closing Date, certifying that, to the knowledge effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of section 368(a) of the Code and belief that each of the Company, Merger Subsidiary and Parent will be a party to the reorganization within the meaning of section 368(b) of the Code. In rendering such officeropinion, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date such counsel shall be entitled to rely upon certain representations of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than officers of the Company and Holder Representative;Parent reasonably requested by counsel. If the opinion referred to in this Section 8.3(e) is not delivered, such condition shall be deemed to be satisfied if the Parent shall have received an opinion from Pillsbury Winthrop LLP or another law firm selected by Parent and reasonably acceptable to the Company. The Company will cooperate in obtaining such opinion, including, without limitation, making (and requesting from affiliates) appropriate representations with respect to relevant matters; and, Table of Contents
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger Parent shall have been approved for listing on NASDAQtaken all action required with regard to the Parent Rights Agreement as set forth in, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to and consistent with, Section 7.8 7.16, and Parent shall have been elected provided the Company with a certificate, executed on behalf of Parent by an executive officer of Parent, confirming the condition set forth in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
this subparagraph (hf) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedSection 8.3.
Appears in 1 contract
Samples: Merger Agreement (Symmetricom Inc)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated hereby are subject to the satisfaction (or waiver by the Company) as of the Closing of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties made by each of Acquiror contained Parent and Merger Sub in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 respects (and 5.14, which all be true and correct materiality qualifiers in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak shall be disregarded for purposes of this Section 7.2(a) to prevent an unintended double materiality standard), as of the date hereof and as of the time of the Closing as though made as of such time, except to the extent such representations and warranties expressly relate to an earlier date, date (in which case such representations and warranties shall be true and correct in all material respects at (and as of all materiality qualifiers in such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at disregarded for purposes of this Section 7.2(a) to prevent an unintended double materiality standard) on and as of such earlier date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement);
(b) Each of the Parent and Merger Sub shall have performed or complied in all material respects with all obligations and covenants of Acquiror hereunder required to be performed or complied with by Parent or Merger Sub, as of the case may be, at or prior to the Closing Date (and all materiality qualifiers in such obligations and covenants shall have been performed in all material respectsbe disregarded for purposes of this Section 7.2(b) to prevent an unintended double materiality standard);
(c) Acquiror no Law enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition preventing the Merger shall be in effect;
(d) the waiting period under the HSR Act, if applicable to the Merger, shall have expired or been terminated; and
(e) Parent or Merger Sub shall have made all payments required of Parent or Merger Sub pursuant to Section 1.2(c) and Section 1.3(c);
(f) Parent or Merger Sub shall have delivered to the Company each of the following:
(i) a certificate signed by an authorized officer of AcquirorParent, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, effect that the conditions specified set forth in Section 9.3(a7.2(a) and Section 9.3(b7.2(b) have been fulfilledsatisfied;
(dii) Since a certificate signed by an authorized officer of Parent certifying as of the date Closing Date (A) a true and complete copy of the Governing Documents of Merger Sub; (B) a true and complete copy of the resolutions of the board of directors of each of Parent and Merger Sub authorizing the execution, delivery and performance by each of Parent and Merger Sub of this Agreement through and the Closing Date, there shall not have been any Acquiror Material Adverse Effectconsummation of the transactions contemplated by this Agreement; and (C) incumbency matters;
(eiii) The Escrow Agreement shall have been duly executed by all parties a certificate of the Secretary of State or other than applicable Governmental Entity certifying the Company good standing of each of Parent and Holder Representative;
(f) The shares Merger Sub in its jurisdiction of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ organization as of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after a date within seven days of the Closing Date;
(hiv) Acquiror shall have made all necessary and appropriate arrangements with a counterpart to the Trustee to have all Escrow Agreement duly executed by Parent; and
(v) a copy of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment Certificate of the Aggregate Cash Consideration and the payment Merger duly executed by an authorized officer of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedMerger Sub.
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Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each each of the representations and warranties of Acquiror contained set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Article 6 shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or material respects, except for Sections 5.9 and 5.14, which all be true and correct adverse effect) or in all but de minimis respects, material respects (in each the case of any representation or warranty not qualified by materiality or material adverse effect) on and as of the date hereof and on and as of the Closing Date, Date with the same effect as if though made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, date (except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the that such representations and warranties that are made as of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall a specific date need only be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement);
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing Purchaser and Merger Sub shall have been performed in all material respects all the covenants and agreements required to be performed by each of them under this Agreement prior to the Closing; provided, that, with respect to covenants and agreements that are qualified by materiality or material adverse effect, Purchaser and Merger Sub shall have performed such covenants and agreements, as so qualified, in all respects;
(c) Acquiror any applicable waiting period under the HSR Act relating to the transactions contemplated by this Agreement shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have expired or been fulfilledterminated;
(d) Since the date of this Agreement through the Closing Dateno Law or order shall have been enacted, promulgated, entered or enforced that would prevent any party hereto from, and there shall not have been be any Acquiror Material Adverse Effectpending Action by or before any court or other Governmental Authority that would restrain, enjoin or otherwise prohibit any party hereto from, consummating the transactions contemplated hereby, including the Merger;
(e) The the Escrow Agreement shall have been duly executed by all parties other than Purchaser and the Company and Holder Representative;Escrow Agent; and
(f) The shares of Acquiror Common Stock on or prior to be issued in connection with the Merger Closing Date, Purchaser shall have delivered to the Sellers’ Representative each of the following:
(i) a certificate from an officer of each of Purchaser and Merger Sub in the form set forth as Exhibit D attached hereto, dated as of the Closing Date, stating that the applicable preconditions specified in Sections 3.1(a) and (b) have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuancesatisfied;
(gii) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with certified copies of the DGCL resolutions duly adopted by the board of directors or managers (or equivalent governing bodies) of each of Purchaser and Merger Sub authorizing the execution, delivery and performance of this Agreement, the other agreements contemplated hereby, and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;consummation of all transactions contemplated hereby and thereby; and
(hiii) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all Restrictive Covenant Agreement, duly executed by Purchaser. Any condition specified in this Section 3.1 may be waived by the Sellers’ Representative (on behalf of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration Company Unitholders and the payment of Acquiror’s fees and expenses incurred Company); provided, however, that no such waiver will be effective against the Company Unitholders or the Company unless it is set forth in connection with this Agreement and a writing executed by the transactions herein contemplatedSellers’ Representative.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each The representations and warranties of Acquiror contained in Section 5.12 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement and (ii) each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (other than Section 5.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respectsrespects or, in the event of any failure to so perform, such breach shall have been cured by Acquiror;
(c) the Acquiror Second A&R Charter shall have been filed with the Secretary of State of the State of Delaware and Acquiror shall have delivered to adopted the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Acquiror A&R Bylaws; and
(d) Since the date of this Agreement through the Closing Date, there Available Acquiror Cash shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other be no less than the Minimum Available Acquiror Cash Amount; provided, that, the parties agree that this condition may not be waived unless the Board of Directors of the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been has approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day waiver after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained Company’s management has expressed its belief, in the Trust Account disbursed to Acquiror immediately prior to its sole discretion, that, following the Closing, and all such funds released from the Trust Account shall be available Company will have enough cash to Acquiror for payment fund the Company through commercialization of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedits business.
Appears in 1 contract
Samples: Merger Agreement (Northern Genesis Acquisition Corp. II)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate consummate, or cause to be consummated, the Merger Transactions at the Closing is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1Section 4.1, 5.2Section 4.2, 5.3Section 4.3, 5.9Section 4.6(a), 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Section 4.9, Section 4.11, Section 4.16(a)-(c), Section 4.17 and Section 4.18 shall be true and correct in all material respects, except for Sections 5.9 respects as of the date hereof and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, Date as if made anew at and as of that timethough then made, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each . Each of the other representations and warranties of Acquiror the Company contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at date hereof and as of that timethe Closing Date as though then made, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, and except for, in each case, (x) inaccuracies or omissions that would not, (without giving effect to any limitation as to “materiality” or “Acquiror Material Adverse Effect” or another similar materiality qualification set forth therein) individually or in the aggregate, have not had, and would not reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementEffect;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, an Acquiror shall have delivered to the Company a certificate signed by an officer Material Adverse Effect; and
(d) As of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Class A Common Stock to be issued in connection with the Merger this Agreement shall have been approved for listing on NASDAQ, Nasdaq or NYSE (subject only to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 issuance thereof), and no Listing Event shall have been elected in accordance with be ongoing or shall occur upon the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after consummation of the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior after giving effect to the Closing, and all such funds released from the Trust Account shall be available Transactions to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred occur in connection with this Agreement and the transactions herein contemplatedClosing.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger Transactions is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each the representations and warranties of Acquiror and Merger Sub contained in Section 5.6 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date (except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or any Ancillary Agreement) and (ii) each of the representations and warranties of Acquiror and Merger Sub contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement other than Section 5.6 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, date (except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of Agreement or the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAncillary Agreements);
(b) Each of the Acquiror and Merger Sub shall in all material respects have performed and complied with all covenants of Acquiror required by this Agreement to be performed as of or complied with by the Acquiror or Merger Sub at or prior to the Closing shall have been performed in all material respectsClosing;
(c) since the date hereof, no Acquiror Material Adverse Effect shall have occurred and be continuing;
(d) Acquiror shall have delivered to the Company a certificate certificate, dated as of the Closing Date, signed by an a duly authorized officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, stating that the conditions specified in Section 9.3(a), Section 9.3(b) and Section 9.3(b9.3(c) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effectsatisfied;
(e) The Escrow Agreement shall have been duly executed (i) the amount of cash available in the Trust Account following the Acquiror Shareholders’ Meeting, after deducting the amount required to satisfy the Acquiror Share Redemption Amount, plus (ii) the PIPE Investment Amount actually received by all parties other than Acquiror prior to the Company and Holder RepresentativeClosing, is equal to or exceeds $375,000,000;
(f) The shares of Acquiror Common Stock to be issued in connection with (or its applicable Affiliates, including the Merger Sponsor) shall have been approved for listing on NASDAQexecuted and delivered to the Company each of the Ancillary Agreements to which the Acquiror or its applicable Affiliates, subject to official notice from NASDAQ of such issuance;as applicable, will be a party; and
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected all of the directors of Acquiror (other than those Persons identified as the initial directors of Acquiror after the Effective Time, in accordance with the DGCL provisions of Section 2.6(b) and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(hSection 7.6) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all resigned or otherwise been removed effective as of the funds contained in the Trust Account disbursed to Acquiror immediately or prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedEffective Time.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is Mergers and the other transactions contemplated hereby and by the ancillary agreements are subject to the satisfaction of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each each of the representations and warranties of Acquiror A contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement or the ancillary agreements that is qualified as to materiality shall be true and correct, and each that is not so qualified shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, Effective Time as if though made anew at on and as of that timethe Effective Time (or, except with respect to such in the case of those representations and warranties which speak address matters only as to an earlier of a particular date, which as of such date), and the Company shall have received a certificate of the Chairman, President or Chief Financial Officer of A to such effect;
(b) each of the representations and warranties of B contained in this Agreement or the ancillary agreements that is qualified as to materiality shall be true and correct, and each that is not so qualified shall be true and correct in all material respects at respects, as of the Effective Time as though made on and as of the Effective Time (or, in the case of those representations and warranties which address matters only as of a particular date, as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement), and (ii) each the Company shall have received a certificate of the representations and warranties Chairman, President or Chief Financial Officer of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect B to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respectseffect;
(c) Acquiror A shall have delivered performed or complied in all material respects with all agreements and covenants required by this Agreement or the ancillary agreements to be performed or complied with by it on or prior to the Effective Time, and the Company shall have received a certificate signed by an officer of Acquirorthe Chairman, dated the Closing Date, certifying that, President or Chief Financial Officer of A to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledthat effect;
(d) Since the date of B shall have performed or complied in all material respects with all agreements and covenants required by this Agreement through or the Closing Dateancillary agreements to be performed or complied with by it on or prior to the Effective Time, there and the Company shall not have been any Acquiror Material Adverse Effectreceived a certificate of the Chairman, President or Chief Financial Officer of B to that effect;
(e) The Escrow Agreement (i) the Company shall have been duly executed received a written opinion from each of Paul, Weiss, Rifkind, Wharton & Garrison and Shearman & Sterling, each xx xhe effect that eacx xx xxe A Xxxxxx and txx X Xxxger will be treated for federal income tax purposes as a reorganization within the meaning of SECTION 368(a) of the Code, and that no gain or loss will be recognized by all parties other than any of C GP, C Inc. or the Company as a result of the C Merger; and Holder Representative;(ii) if the Drop-Down is to be effected, the Company shall have received a written opinion from each of Paul, Weiss, Rifkind, Wharton & Garrison and Shearman & Sterling to the xxxect that the Drop-Xxxx xxll xx xxxxxed fox xxxxxxl income tax purposes as a tax-free transfer of property within the meaning of SECTION 351 of the Code; which opinions may rely upon such certificates of the Company, B and A as are customary for such opinions, including certificates substantially in the forms of EXHIBIT F, EXHIBIT G and EXHIBIT H; and
(f) The shares As of Acquiror Common Stock to be issued in connection with the Merger Effective Time, the Company and its subsidiaries (which shall include A and B) shall have been approved for listing on NASDAQaccess to, subject to official notice from NASDAQ of or there shall be a high likelihood that the Company and such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 subsidiaries shall have been elected access to, at least $75 million of "liquidity" (as such term is used in accordance with the DGCL first sentence of Instruction 5 to Paragraph 303(a) of Regulation S-K) that none of A, its subsidiaries, B and the Acquiror Governing Documents its subsidiaries had access to serve on the Acquiror Board effective date of this Agreement. For the first Business Day after avoidance of doubt, sources of "liquidity" shall include financings (whether they are debt or equity financings) and governmental and other loan guarantees for the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all benefit of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment Company or any of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedits subsidiaries.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained set forth in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) Article 6 shall be true and correct as of if the Closing Date, as if made anew at and as Date were substituted for the date of that time, except with respect to this Agreement throughout such representations and warranties which speak as to an earlier date, which (except that such representations and warranties shall that are made as of a specific date need only be true and correct at and as of such date), except for, in each case, (x) inaccuracies or omissions that would notwhere the failure of any such representations and warranties to be true and correct has not had, individually or in the aggregate, reasonably be expected a material adverse effect on the ability of the Evolent Entities or Merger Sub to have an Acquiror Material Adverse Effect and (y) changes after consummate the date of this Agreement which are transactions contemplated or expressly permitted by this Agreementhereby;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing Evolent Entities and Merger Sub shall have been performed in all material respectsrespects all the covenants and agreements required to be performed by each of them under this Agreement prior to the Closing;
(c) Acquiror any applicable waiting period under the HSR Act relating to the transactions contemplated by this Agreement shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have expired or been fulfilledterminated;
(d) Since no law or order shall have been enacted or entered into after the date hereof that would prohibit the consummation of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse EffectMerger;
(e) The the Escrow Agreement shall have been duly executed by all parties other than Purchaser and the Company and Holder RepresentativeEscrow Agent;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger Purchaser shall have delivered to the Sellers’ Representative each of the following:
(i) a certificate from an officer of each of the Evolent Entities and Merger Sub in the form set forth as Exhibit H attached hereto, dated as of the Closing Date, stating that the applicable preconditions specified in Sections 3.1(a) and (b) have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuancesatisfied;
(gii) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with certified copies of the DGCL resolutions duly adopted by the board of directors (or equivalent governing bodies) of each of the Evolent Entities and Merger Sub authorizing the execution, delivery and performance of this Agreement, the other agreements contemplated hereby, and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Dateconsummation of all transactions contemplated hereby and thereby;
(hiii) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all Registration Rights Agreement duly executed by Purchaser; and
(iv) a Purchase Price Adjustment Agreement substantially in the form attached hereto as Exhibit I (the “Purchase Price Adjustment Agreement”) duly executed by Purchaser. Any condition specified in this Section 3.1 may be waived by the Sellers’ Representative on behalf of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration Sellers and the payment of Acquiror’s fees and expenses incurred Company; provided, however, that no such waiver will be effective against the Sellers or the Company unless it is set forth in connection with this Agreement and a writing executed by the transactions herein contemplatedSellers’ Representative.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each of the representations and warranties of Acquiror contained set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Article VI shall be true and correct in all material respects, at and as of the date of this Agreement and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties (except for Sections 5.9 that those representations and 5.14, which all warranties that are made as of a specific date need only be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that timesuch date), except with respect to where the failure of any such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would nothas not had, individually or in the aggregate, reasonably be expected to have an Acquiror a Parent Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementEffect;
(b) Each of Parent and the covenants of Acquiror to be performed as of or prior to the Closing Merger Subsidiary shall have been each performed in all material respectsrespects all the covenants and agreements required to be performed by it under this Agreement prior to the Closing;
(c) Acquiror No Proceeding before any Governmental Agency shall be pending which, if successful for the Governmental Agency, would result in an Order that would prevent the carrying out of this Agreement or any of the transactions contemplated hereby, or cause such transactions to be rescinded;
(d) Parent shall have delivered to the Company an opinion of a certificate signed by an officer of Acquirorlaw firm licensed to practice law in California that is acceptable to the Company, dated the Closing Date, certifying in a form reasonably acceptable to the Company’s legal counsel and dated the Closing Date, substantially to the effect that:
(i) The incorporation, existence, good standing and capitalization of Parent and of the Merger Subsidiary are as stated in this Agreement and, assuming the effectiveness of the Merger, the shares of Parent Stock to be issued to and received by the Company Shareholders pursuant to this Agreement will be duly and validly authorized and issued, fully paid and non-assessable; all outstanding shares of Parent Stock are duly and validly authorized and issued, fully paid and non-assessable and have not been issued in violation of any preemptive right of any Person; and, to the knowledge and belief of such officercounsel, there are no existing Rights of Parent or of the conditions Merger Subsidiary other than as stated in this Agreement.
(ii) Parent and the Merger Subsidiary each has full corporate power and authority to execute, deliver and perform this Agreement, and this Agreement has been duly authorized, executed and delivered by Parent and the Merger Subsidiary, and (assuming the due and valid authorization, execution and delivery by the Company) constitutes the legal, valid and binding agreement of Parent and the Merger Subsidiary, enforceable against Parent and the Merger Subsidiary in accordance with its terms.
(iii) This Agreement, as to Sections 4.11 and 8.3 hereof, and the Lock-Up Agreement have been duly executed and delivered by the Parent Control Shareholders and constitute the legal, valid and binding agreements of the Parent Control Shareholders, enforceable against the Parent Control Shareholders in accordance with their respective terms.
(iv) To the knowledge of such counsel, there are no actions, suits or proceedings, pending or threatened against Parent by any Governmental Authority, which seek to restrain, prohibit or invalidate the transaction contemplated by this Agreement.
(v) The execution and performance by Parent and the Merger Subsidiary of this Agreement will not violate the Articles of Incorporation or Certificate of Incorporation or the Bylaws of Parent or the Merger Subsidiary.
(vi) Any required approvals of the Shareholders of Parent and the Merger Subsidiary to the execution, delivery and performance of this Agreement have been duly obtained, and to the knowledge of such counsel, no consent, approval, authorization or order of any court or Governmental Authority which has not been obtained is required on behalf of Parent or the Merger Subsidiary for consummation of the transactions contemplated by this Agreement.
(vii) The issuance of the Parent Stock in the Merger is exempt from the registration provisions of Section 5 of the 1933 Act and under applicable blue sky laws. In rendering its opinion, counsel may rely as to factual matters on certificates of public officials and officers or employees of Parent, provided that copies of such opinions and certificates shall be delivered with such opinion, and provided further that in the case of any such reliance, counsel shall state that it believes that it is justified in relying on such opinions and certificates for such matters.
(e) On or prior to the Closing Date, Parent shall have delivered to the Company each of the following:
(i) a certificate in the form set forth as Exhibit D attached hereto from the Chief Executive Officer of Parent, dated as of the Closing Date, stating that the applicable preconditions specified in Section 9.3(a3.1(a) and Section 9.3(b(b) hereof have been fulfilledsatisfied, and certifying such other matters as set forth in Exhibit D;
(dii) certified copies of the resolutions duly adopted by the Board of Directors and Shareholders (if Shareholder approval is required) of Parent and of the Merger Subsidiary authorizing the execution, delivery and performance of this Agreement and the consummation of all transactions contemplated hereby; and
(iii) copies of any consents, approvals, releases from and filings with, Governmental Agencies required in order to effect the transactions contemplated by this Agreement which Parent or the Merger Subsidiary is responsible to obtain pursuant to the terms of this Agreement;
(f) Any and all debt owed to any related or third party by Parent shall have been paid and discharged, or debt forgiveness agreements shall have been obtained from such parties such that neither Parent nor the Merger Subsidiary shall have any debt or liabilities of any kind as of the Effective Time, except for amounts owing to the Parent Control Shareholders for services as an officer of Parent or for legal services rendered to Parent that in the aggregate shall not exceed $200,000 and which shall be paid by the Parent to the Parent Control Shareholders promptly following the Closing;
(g) Dissenters’ rights of appraisal shall not have been exercised by any Parent Shareholders, if such rights are applicable under applicable Law, or by any Company Shareholders.
(h) Since the date of this Agreement through the Closing DateAgreement, there shall not have been occurred any Acquiror Parent Material Adverse Effect, and no Event shall have occurred or circumstance shall exist that, in combination with all other Events, could reasonably be expected to have a Parent Material Adverse Effect.
(i) All certificates, instruments and other documents required to effect the transactions contemplated hereby reasonably requested by the Company shall be reasonably satisfactory in form and substance to the Company;
(ej) The Escrow Agreement Parent Control Shareholders shall have been duly executed by all parties other than and delivered to Parent the Company and Holder RepresentativeLock-Up Agreement;
(fk) The shares of Acquiror Common Stock to be issued in connection with the Merger Company shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ obtained the requisite approval of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance its Shareholders with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior respect to the Closingexecution, delivery and all such funds released from the Trust Account shall be available to Acquiror for payment performance of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the consummation of all transactions herein contemplatedcontemplated hereby;
(l) The Company shall have raised at least $500,000 in capital in one or more private placements of its securities completed between June 1, 2010 and the Closing Date; and
(m) The Company or the Company’s Shareholders (as designated in writing by the Company) shall have purchased from the Parent Control Shareholders for an aggregate purchase price of $25,000 a total of 1,000 shares of Parent Preferred Stock that will be convertible into 320,264,837 shares of Parent Common Stock, so that the Company’s Shareholders immediately following the Closing will own 96.25% of the then outstanding shares of the Parent Common Stock (on a fully diluted basis and assuming distribution of all of the shares of Parent Preferred Stock to the Company’s Shareholders and conversion of all of the Parent Preferred Stock). Any condition specified in this Section 3.1, except the conditions in clauses (c) and (k) may be waived by the Company; provided, however, that no such waiver will be effective unless it is set forth in a writing executed by the Company.
(n) A certificate of determination in form acceptable to the Company creating 1,000 authorized shares of Parent Preferred Stock shall have been filed by Parent with the California Secretary of State, and all of these shares shall have been issued to the Parent Control Shareholders in cancellation of $25,000 that is owed to them by Parent.
Appears in 1 contract
Samples: Merger Agreement (Retrospettiva Inc)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each of the representations and warranties of Acquiror contained set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Article VI shall be true and correct in all material respects, at and as of the date of this Agreement and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties (except for Sections 5.9 that those representations and 5.14, which all warranties that are made as of a specific date need only be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that timesuch date), except with respect to where the failure of any such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would nothas not had, individually or in the aggregate, reasonably a material adverse effect on the ability of Parent or the Merger Subsidiary to consummate the transactions contemplated hereby;
(b) Parent and the Merger Subsidiary shall have each performed in all material respects all the covenants and agreements required to be expected performed by it under this Agreement prior to the Closing;
(c) Any applicable waiting period (and any extensions thereof) under the HSR Act relating to the transactions contemplated by this Agreement shall have expired or been terminated;
(d) No Proceeding before any Governmental Agency shall be pending which, if successful for the Governmental Agency, would result in an Acquiror Material Adverse Effect and (y) changes after Order that would prevent the date carrying out of this Agreement or any of the transactions contemplated hereby, or cause such transactions to be rescinded;
(e) Parent shall have delivered all of the Cash Consideration to the Shareholders’ Representative (for the benefit of the Shareholders) or the Paying Agent, as the case may be;
(f) Parent shall have delivered to Shareholders’ Representative an opinion of Xxxxx & Xxxxxxxx, s.c. dated the Closing Date, in a form reasonably acceptable to the Shareholders’ Representative’s counsel;
(g) On or prior to the Closing Date, Parent shall have delivered to the Shareholders’ Representative each of the following:
(i) certificate from an officer of Parent in the form set forth as Exhibit C attached hereto, dated as of the Closing Date, stating that the applicable preconditions specified in Section 3.1(a) and (b) hereof have been satisfied;
(ii) certified copies of the resolutions duly adopted by the board of directors and shareholders of Parent and the Merger Subsidiary authorizing the execution, delivery and performance of this Agreement and the consummation of all transactions contemplated hereby; and
(iii) copies of all consents, approvals, releases from and filings with, Governmental Agencies required in order to effect the transactions contemplated by this Agreement which are contemplated or expressly permitted by Parent is responsible to obtain pursuant to the terms of this Agreement;
(bh) Each of All certificates, instruments and other documents required to effect the covenants of Acquiror to transactions contemplated hereby reasonably requested by the Shareholders’ Representative shall be performed as of or prior reasonably satisfactory in form and substance to the Closing Shareholders’ Representative; and
(i) The Company shall have been performed in all material respects;
(c) Acquiror shall have delivered obtained the approval of its shareholders with respect to the Company a certificate signed by an officer execution, delivery and performance of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the consummation of all transactions herein contemplatedcontemplated hereby. Any condition specified in this Section 3.1 may be waived by the Company; provided, however, that no such waiver will be effective unless it is set forth in a writing executed by the Company.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of HoldCo, Merger Sub and the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each The representations and warranties of SPAC contained in Section 5.13 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement and (ii) each of the representations and warranties of Acquiror SPAC contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (other than Section 5.13) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of Agreement or the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAncillary Agreements;
(b) Each of the covenants of Acquiror SPAC to be performed as of or prior to the Closing shall have been performed in all material respects;; and
(c) Acquiror shall have delivered to the Company a certificate signed The amount of cash actually received by an officer of Acquiror, dated HoldCo substantially concurrently with the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account PIPE Investments shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedno less than $150,000,000.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction of the following additional conditions, any one or more of which may be waived waiver in writing by the CompanyCompany of the following further conditions:
(a) The representations and warranties of Buyer Parent, Buyer and Merger Sub contained (i) Each in Article 5 of this Agreement (other than the representations and warranties of Acquiror contained set forth in Sections 5.15.1(a), 5.2, 5.3, 5.6 (excluding Section 5.6(f)) and 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects(determined without regard to any qualifications or limitations as to materiality, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case Buyer Material Adverse Effect or words of similar import) as of the Closing Date, Date as if made anew on and as of the Closing Date (or, if given as of a specific date, at and as of that timesuch date), except with respect to where the failure or failures of any such representations and warranties which speak as to an earlier datebe so true and correct have not had and would not be reasonably likely to have, which representations individually or in the aggregate, a Buyer Material Adverse Effect and warranties (ii) in Sections 5.1(a), 5.2, 5.6 (excluding Section 5.6(f)) and 5.9 shall be true and correct in all material respects as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date). Buyer Parent, except for changes after the date of Buyer and Merger Sub shall have performed and complied with and observed in all material respects all covenants and agreements required by this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or complied with or observed by it on or prior to the Closing Closing. Buyer Parent, Buyer and Merger Sub shall have been performed in all material respects;
(c) Acquiror shall each have delivered to the Company a certificate signed by an from a duly authorized officer of AcquirorBuyer Parent, Buyer and Merger Sub, as applicable, dated the Closing Date, certifying that, to the knowledge foregoing effect.
(b) Buyer and belief the Escrow Agent shall have entered into the Escrow Agreement, and (other than due to the failure of such officer, the conditions specified Seller Representative to execute and deliver the Escrow Agreement) the Escrow Agreement shall be in Section 9.3(afull force and effect as of the Closing.
(c) and Section 9.3(b) The Exchanges shall have been fulfilled;consummated in accordance with the applicable Exchange Agreements.
(d) Since Buyer Parent and Guarantor shall have executed and delivered to the date Company each Ancillary Agreement to which it is a party (in form and substance substantially as attached hereto or to the Spin Off Agreement, as the case may be), and (other than due to the failure of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(eother parties thereto to execute and deliver the applicable Ancillary Agreement) The Escrow each such Ancillary Agreement shall have been duly executed by all parties other than the Company be in full force and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all effect as of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Booz Allen Hamilton Holding Corp)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction of the following additional further conditions, any one or more all of which may be waived waived, in writing whole or in part, to the extent permitted by the Companythis Agreement and by applicable law:
(a) (i) Each of AirNet, Merger Subsidiary and Xx. Xxxxxx shall have performed in all material respects their respective agreements and covenants required by this Agreement to be performed by them at or prior to the Effective Time; the representations and warranties of Acquiror AirNet and Merger Subsidiary contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respectsany certificate or other writing delivered by AirNet or Merger Subsidiary pursuant hereto, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, disregarding (except with respect to such representations and warranties which speak as Section 4.14) any qualifications contained therein with respect to an earlier datemateriality or AirNet Material Adverse Effect, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Effective Time as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such datetime, except forand the Company shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of AirNet to the foregoing effect; (b) since December 31, 1997, there shall have been no change, occurrence or circumstance in each casethe business, results of operations or condition (xfinancial or otherwise) inaccuracies of AirNet having or omissions that would notreasonably likely to have, individually or in the aggregate, reasonably be expected to have an Acquiror AirNet Material Adverse Effect Effect, and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each Company shall have received a certificate of the covenants Chief Executive Officer and Chief Financial Officer of Acquiror AirNet to be performed as of or prior to the Closing shall have been performed in all material respects;
such effect; (c) Acquiror no court, arbitrator or governmental body, agency or official shall have delivered to issued any order, and there shall not be any statute, rule or regulation, materially restraining or prohibiting the Company a certificate signed by an officer consummation of Acquiror, dated the Closing Date, certifying that, to Merger or the knowledge and belief effective operation of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
business of AirNet after the Effective Time; (d) Since the date of this Stockholders shall have received a Registration Rights Agreement through in the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
form attached hereto as Annex D executed by AirNet; (e) The Escrow Agreement the Stockholders shall have been duly received Employment Agreements for Xxxxxx Xxxxxxx, Xxxxxxxxx Xxxxx and Xxxxx Xxxxx, in the forms attached hereto as Annex X-0, Xxxxx X-0 xxx Xxxxx X-0, respectively, executed by all parties other than AirNet, and such agreements shall continue to be in full force and effect as of the Company and Holder Representative;
Effective Time; (f) The shares of Acquiror Common Stock to be issued in connection with the Merger Primary Stockholder shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
received the Airport Facility Purchase Agreement executed by AirNet; (g) The Nominee Director designated pursuant to Section 7.8 the Company shall have been elected in accordance with received all documents it may reasonably request relating to the DGCL existence of AirNet and Merger Subsidiary and the Acquiror Governing Documents authority of AirNet and Merger Subsidiary to serve on enter into, deliver and perform this Agreement, all in form and substance reasonably satisfactory to the Acquiror Board effective the first Business Day after the Closing Date;
Company; and (h) Acquiror the Company shall have made all necessary and appropriate arrangements received a letter, dated as of the Effective Time, from Ernst & Young LLP (New York) regarding its concurrence with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior Company's conclusion as to the Closing, and all such funds released from appropriateness of pooling of interests accounting treatment for the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedMerger under Accounting Principles Board Opinion No. 1.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is Arrangement are subject to the satisfaction of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained made by Purchaser in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case shall: (i) have been accurate as of the Closing Date, date of this Agreement; and (ii) be accurate as of the Effective Time as if made anew at and as of that time, the Effective Time (except with respect to such for representations and warranties which that speak as to an earlier of a particular date, which representations and warranties shall be true and correct in all material respects at and accurate as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for), in each case, (x) inaccuracies without giving effect to any “Material Adverse Change” or omissions that “Material Adverse Effect” or other materiality qualifications, or any similar qualifications, contained or incorporated directly or indirectly in such representations and warranties, except where such breach or misrepresentation, alone or together with all other breaches or misrepresentations, would not, individually not result in a Material Adverse Change or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date in respect of this Agreement which are contemplated or expressly permitted by this Agreement;Purchaser.
(b) Each of the covenants of Acquiror and obligations that Purchaser are required to be performed as of comply with or to perform at or prior to the Closing Effective Time shall have been complied with and performed in all material respects;.
(c) Acquiror The Arrangement, in the manner contemplated by the Plan of Arrangement, shall have delivered to been approved by the Company a certificate signed Securityholders in the manner required by an officer of Acquiror, dated Applicable Laws (including any conditions under the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Interim Order).
(d) Since The Purchaser Shares to be issued pursuant to the date of this Agreement through the Closing Date, there shall not Arrangement have been any Acquiror Material Adverse Effect;conditionally approved for listing on the TSX, subject only to such conditions, including the filing of documentation, as are acceptable to Purchaser and the Company, acting reasonably.
(e) The Escrow Agreement shall have been duly executed by all parties other than distribution of the Purchaser Shares in the United States in exchange for the Company and Holder Representative;
(f) The shares Common Shares pursuant to the Arrangement is exempt from registration requirements under the 1933 Act, and, except with respect to persons deemed “affiliates” under the 1933 Act, the Purchaser Shares to be distributed in exchange for the Company Common Shares in the United States pursuant to the Arrangement are not subject to resale restrictions in the United States under the 1933 Act. For purposes of Acquiror Common Stock clarification only, the foregoing condition shall not apply to the Purchaser Shares to be issued in connection with the Merger shall have been approved for listing exercise of the Company Warrants on NASDAQor after the Effective Date.
(f) The distribution of the Purchaser Shares in Canada pursuant to the Arrangement and the distribution of the Purchaser Shares upon exercise of the Company Warrants and Goldcorp Warrants is exempt from, or otherwise not subject to, registration and prospectus requirements of applicable Securities Laws and, except with respect to persons deemed to be “control persons” or the equivalent under applicable Securities Laws, the Purchaser Shares to be distributed in Canada pursuant to the Arrangement and pursuant to the exercise of the Company Warrants and the Goldcorp Warrants are not subject to official notice from NASDAQ of such issuance;any resale restrictions under applicable Securities Laws.
(g) The Nominee Director designated pursuant There shall not be pending or threatened by or before any Governmental Authority any Proceeding that seeks to Section 7.8 shall have been elected in accordance with prevent the DGCL consummation of the Arrangement on the terms, and conferring upon Purchaser and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;Company all of their respective rights and benefits, contemplated herein.
(h) Acquiror Since the date of this Agreement, there shall not have occurred any Material Adverse Change in respect of Purchaser.
(i) The Company shall have made all necessary received certificates executed on behalf of Purchaser by the Certifying Officers of Purchaser (the “Purchaser Closing Certificate”) containing the representation and appropriate arrangements with warranty of Purchaser that the Trustee to conditions set forth in Sections 10.03(a) and 10.03(b), have all been duly satisfied.
(j) The Purchaser shall have entered into a definitive agreement for the sale of gold for proceeds of not less than US$300 million or other financing of an equal or superior value as determined by the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment Purchaser Board of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedDirectors.
Appears in 1 contract
Samples: Arrangement Agreement (Thompson Creek Metals CO Inc.)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(ai) Parent and MergerSub each shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the time of the filing of the Certificate of Merger, (ii) (iA) Each of the representations and warranties of Acquiror Parent contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement that are qualified by reference to a Parent Material Adverse Effect shall be true and correct in all material respects, except for Sections 5.9 when made and 5.14, which all be true at and correct in all but de minimis respects, in each case as of the Closing Datetime of filing the Certificate of Merger, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such time (except to the extent any such representation or warranty expressly speaks as of an earlier date, except for changes after the date of this Agreement in which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) case it shall be true and correct as of the Closing Date, as if such date) and (B) all other representations and warranties of Parent shall have been true and correct when made anew and at and as of that time, the time of the filing of the Certificate of Merger as if made at and as of such time (except with respect to the extent any such representations and warranties which speak representation or warranty expressly speaks as to of an earlier date, in which representations and warranties case it shall be true and correct at and as of such date), except for, in each case, (x) for such inaccuracies or omissions that would notas are not reasonably likely, individually or in the aggregate, reasonably be expected to have an Acquiror a Parent Material Adverse Effect Effect, and (yiii) changes after the date Company shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of this Agreement which are contemplated or expressly permitted by this AgreementParent to the foregoing effect;
(b) Each The Company shall have received an opinion of Dewey Ballantine LLP in form and substance reasonably satisfactory xx xxx Xxxxxxx, on the basis of certain facts, representations and assumptions set forth in such opinion, dated as of the covenants date of Acquiror to be performed as the filing of or prior the Certificate of Merger, to the Closing effect that the Merger will be treated for federal income tax purposes as a 368 Reorganization. In rendering such opinion, such counsel shall have been performed be entitled to rely upon customary representations of officers of the Company and Parent in all material respects;form and substance reasonably satisfactory to such counsel and other reasonable assumptions set forth therein; and
(c) Acquiror The parties shall have delivered obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Sections 4.3 and 5.3 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) (assuming the Effective Time had occurred) would be reasonably likely to the Company have a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Parent Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the First Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the CompanyCompany and, to the extent the Required Transaction has not closed, Solaria:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Section 5.12 shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date; provided, however, that as used in this Section 9.3(a)(i), “material” shall mean, with respect to any number required to be set forth in Section 5.12, any deviations which, in the aggregate, are in excess of 5% of the outstanding capital stock of the Acquiror on a fully diluted basis, (ii) the representations and warranties of Acquiror contained in Section 5.2 and Section 5.13 shall be true and correct in all respects as of the Closing Date, except for changes after the with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects at and as of such date of this Agreement which are contemplated or expressly permitted by this Agreement, and (iiiii) each of the other representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casethe case of this clause (iii), (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after a material adverse effect on Acquiror’s ability to consummate the date of this Agreement which are transactions contemplated or expressly permitted by this Agreement;
(b) Each each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have filed a certificate of incorporation with the Secretary of State of Delaware and adopted bylaws (in substantially the forms attached as Exhibits A and B hereto, respectively, with such changes as many be agreed in writing by Xxxxxxxx and the Company);
(d) the Domestication shall have been completed as provided in Section 7.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company;
(e) the Available Acquiror Cash shall be no less than $100,000,000; and
(f) Acquiror shall have delivered to the Company a certificate certificate, dated the Closing Date and signed by an officer of the Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Business Combination Agreement (Freedom Acquisition I Corp.)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained set forth in this Agreement Article 6 (other than the Acquiror Fundamental Representations (disregarding any qualifications representations and exceptions contained therein relating to materialitywarranties set forth in Sections 6.1, material adverse effect 6.2, 6.3(b)(i) and Acquiror Material Adverse Effect or any similar qualification or exception6.6) shall be true and correct as of the Closing Date, as if made anew at and as of Date (except that time, except with respect to such representations and warranties which speak that are made as to an earlier date, which representations and warranties shall of a specific date need only be true and correct at and as of such date), except for, in each case, (x) inaccuracies or omissions that would notwhere the failure of any such representations and warranties to be so true and correct has not had, individually or in the aggregate, reasonably a material adverse effect on the ability of Purchaser or Merger Sub to consummate the transactions contemplated hereby; and each of the representations and warranties set forth in Sections 6.1, 6.2, 6.3(b)(i) and 6.6 shall be expected to have an Acquiror Material Adverse Effect true and (y) changes after correct in all respects as of the date of this Agreement which are contemplated or expressly permitted by this AgreementClosing Date;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing Purchaser and Merger Sub shall have been performed in all material respectsrespects all the covenants and agreements required to be performed by each of them under this Agreement prior to the Closing;
(c) Acquiror no law or order shall have delivered to been enacted or entered into after the Company a certificate signed by an officer date hereof that would prevent the consummation of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledMerger;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than Purchaser and the Escrow Agent;
(e) Purchaser shall have delivered the Aggregate Initial Consideration (less the Sellers’ Representative Expense Fund and any amounts otherwise payable to Company and Holder RepresentativeStockholders that have not delivered an executed Letter of Transmittal in accordance with Section 2.7(b)) to the Paying Agent pursuant to the terms of Section 2.7(b);
(f) The shares of Acquiror Common Stock to be issued in connection with Purchaser shall have delivered the Indemnification Escrow Amount, the Special Escrow Amount and the Merger shall have been approved for listing on NASDAQ, subject Consideration Adjustment Escrow Amount to official notice from NASDAQ of such issuancethe Escrow Agent;
(g) The Nominee Director designated Purchaser shall have delivered the amount of the Sellers’ Representative Expense Fund to the Sellers’ Representative pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date8.7(e);
(h) Acquiror Purchaser shall have made paid, or caused to be repaid, the Repaid Indebtedness and all necessary and appropriate arrangements with Sellers’ Transaction Expenses (to the Trustee to have all of extent not paid by the funds contained in the Trust Account disbursed to Acquiror immediately Company prior to the Closing); and
(i) on or prior to the Closing Date, Purchaser shall have delivered to the Sellers’ Representative each of the following:
(i) a certificate from an officer of each of Purchaser and Merger Sub in substantially the form set forth as Exhibit E attached hereto, dated as of the Closing Date, stating that the applicable preconditions specified in Sections 3.1(a) and (b) have been satisfied; and
(ii) certified copies of the resolutions duly adopted by the board of directors (or equivalent governing bodies) of each of Purchaser and Merger Sub authorizing the execution, delivery and performance of this Agreement, the other agreements contemplated hereby, and the consummation of all such funds released from transactions contemplated hereby and thereby. Any condition specified in this Section 3.1 may be waived by the Trust Account shall be available to Acquiror for payment Sellers’ Representative on behalf of the Aggregate Cash Consideration Sellers and the payment of Acquiror’s fees and expenses incurred Company; provided, however, that no such waiver will be effective against the Sellers or the Company unless it is set forth in connection with this Agreement and a writing executed by the transactions herein contemplatedSellers’ Representative.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained Parent and Merger Sub set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects(without regard to any materiality qualifications or references to Material Adverse Effect contained therein), except for Sections 5.9 as of the date of this Agreement and 5.14, which all be true as of the Closing Date as though made on and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to the extent such representations and warranties which speak as (i) expressly relate to an earlier datedate (in which case, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated ) or expressly permitted by this Agreement, and (ii) each may not be true or accurate by reason of the representations and warranties of Acquiror contained in actions taken by Parent or Merger Sub as permitted by Section 5.2 hereof; provided, however, that this Agreement other than the Acquiror Fundamental Representations paragraph (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exceptiona) shall be true and correct deemed satisfied so long as the failure of the Closing Date, as if made anew at and as of that time, except with respect to all such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would notcorrect, individually or in the aggregate, has not had and would not reasonably be expected to have an Acquiror a Material Adverse Effect on Parent and (y) changes after its subsidiaries, taken as a whole, and the date Company shall have received a certificate signed on behalf of this Agreement which are contemplated or expressly permitted Parent by this Agreementa senior executive officer of Parent to such effect;
(b) Each each of the covenants obligations of Acquiror Parent and Merger Sub to be performed as of at or prior before the Effective Time pursuant to the Closing terms of this Agreement shall have been duly performed in all material respects;
(c) Acquiror respects at or before the Effective Time and, at the Closing, Parent and Merger Sub shall have delivered to the Company a certificate signed executed by an a senior officer of AcquirorParent to that effect;
(c) Parent shall have executed and delivered to Davix Xxxxxxxxxx x xegistration rights agreement in the form of Exhibit D hereto (the "Registration Rights Agreement");
(d) the Certificate of Designations with respect to the Parent Series A Preferred Stock shall have been filed with the Secretary of State of the State of Delaware;
(e) the Company shall have received an opinion of Paul, Hastings, Janoxxxx & Xalkxx XXX, dated the Closing Date, certifying that, to the knowledge effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, Paul, Hastings, Janoxxxx & Xalkxx XXX shall have received and belief of such officer, may rely upon the conditions specified representations contained in the certificates referred to in Section 9.3(a) and Section 9.3(b) have been fulfilled5.14;
(df) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow a material breach of the Parent Stockholder Voting Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;Parent Stockholder; and
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all each of the funds contained agreements referenced in the Trust Account disbursed to Acquiror immediately prior to the ClosingSection 4.27 shall be in full force and effect, and all such funds released from the Trust Account there shall be available exist no claims that would give rise to Acquiror for payment a right of termination by either of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedparties thereto.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is Closing are subject to the satisfaction (or waiver by the Company), at or before the Closing Date, of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) the Company shall have completed its due diligence investigation of ACZ to the Company’s satisfaction in the Company’s sole discretion,
(ib) Each at the time of the Closing, ACZ will have no liabilities, contingent or otherwise, other than as shown in the Final Closing Balance Sheet unless such liabilities have been specifically agreed to by the Company in writing,
(c) the Closing shall not result in ACZ being debarred or losing its status with any third-Party or government payor for the provision of medical product manufacturing.,
(d) The representations and warranties of Acquiror contained made by the ACZ Parties in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be have been true and correct in all material respects, except for Sections 5.9 when made and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the other than representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating which are qualified as to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) which shall be true and correct in all respects) at the Closing Date with the same force and effect as if such representations and warranties were made at and as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) for changes after the date of this Agreement which are contemplated or expressly therein permitted by this Agreement;,
(be) All ACZ Assets, are free and clear of all Encumbrances, other than in respect of the Long-Term Debt and Permitted Encumbrances, with ACZ having the full right, title, privileges, claims and interest in, whether owned or leased, real or personal, tangible or intangible,
(f) Each of the ACZ Parties shall have performed or complied with all covenants of Acquiror and conditions required by this Agreement to be performed as of or complied with by such ACZ Parties prior to or at the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;Closing,
(g) The Nominee Director designated pursuant to Section 7.8 Consents shall have been elected in accordance with delivered to the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;Company,
(h) Acquiror No Order, statute, rule, regulation, executive order, injunction, stay, decree, judgment or restraining order shall have made all necessary and appropriate arrangements with been enacted, entered, promulgated or enforced by any court or governmental or regulatory authority or instrumentality which prohibits the Trustee to have all consummation of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account transactions contemplated hereby,
(i) The ACZ Parties shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with each have approved this Agreement and the transactions herein contemplatedcontemplated herein,
(j) All consents, approvals, waivers, or amendments pursuant to all contracts, licenses, permits, trademarks and other intangibles in connection with the transactions contemplated herein, or for the continued operation of ACZ after the Closing Date on the basis as presently operated shall have been obtained,
(k) The Non-Compete Agreements shall have been executed, and
(l) The Company shall have received all required regulatory approvals (including the Nasdaq Stock Market LLC) and shareholder approval, if required, in respect of the Transaction.
Appears in 1 contract
Samples: Share Exchange Agreement (Novo Integrated Sciences, Inc.)
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger transactions contemplated by this Agreement is subject to the satisfaction or waiver, in whole or in part, in the sole discretion of the Company (it being understood that no such waiver shall waive any rights or remedies otherwise available to the Company), of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each of the The representations and warranties of Acquiror contained set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 Article III hereof (the “Acquiror Fundamental Buyer Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect are not subject to such representations and warranties which speak as to an earlier date, which representations and warranties materiality qualifications shall be true and correct in all material respects at and as of such date, except the Closing Date as though then made and as though the Closing Date had been substituted for changes after the date of this Agreement throughout such representations and warranties, except that any such representation or warranty expressly made as of a specified date shall only need to have been true on and as of such date, and the Buyer Representations which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any subject to materiality qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct in all respects at and as of the Closing Date as though then made and as though the Closing Date had been substituted for the date of this Agreement throughout such representations and warranties, except that any such representation or warranty expressly made as of a specified date shall only need to have been true on and as of such date (it being understood that, in determining the accuracy of such representations and warranties for purposes of this Section 8.02(a), any discovery of information by the Company shall be disregarded);
(b) C&T and Merger Sub shall have performed or complied with in all material respects of all the covenants and agreements required to be performed or complied with by them under this Agreement prior to the Closing;
(c) There shall not be threatened, instituted or pending any order, action or proceeding, before any Governmental Entity, (i) challenging or seeking to make illegal, or to delay or otherwise directly or indirectly restrain or prohibit, the consummation of the transactions contemplated hereby or seeking to obtain material damages in connection with such transactions, (ii) seeking to invalidate or render unenforceable any material provision of this Agreement or any of the other Transaction Documents or (iii) otherwise relating to and materially adversely affecting the transactions contemplated hereby;
(d) The Company shall have obtained approval of the Merger and this Agreement from its Shareholders, as may be required by Section 903 of the NYBCL and its Certificate of Incorporation and bylaws (and in this connection the Company shall have obtained a satisfactory “fairness opinion”);
(e) There shall not be any action taken, or any Law enacted, entered, enforced, promulgated, issued or deemed applicable to the transactions contemplated hereby by any Governmental Entity which would reasonably be expected to result, directly or indirectly, in any of the consequences referred to in Section 8.02(c);
(f) On the Closing Date, C&T shall have delivered to the Company:
(i) a certificate of the appropriate officer of each of C&T and Merger Sub, dated the Closing Date, stating that the conditions precedent set forth in Sections 8.02(a) and (b) have been satisfied;
(ii) a copy of the text of the resolutions adopted by the board of directors of each of C&T and Merger Sub authorizing the execution, delivery and performance of this Agreement, the other Transaction Documents and the consummation of all of the transactions contemplated hereby and thereby, along with certificates, dated as of the Closing Date, as if made anew at executed on behalf of C&T and as Merger Sub by the corporate secretary or assistant secretary of that time, except with respect to such representations C&T and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered Merger Sub certifying to the Company a certificate signed by an officer (A) that such copies are true, correct and complete copies of Acquirorsuch resolutions, dated the Closing Daterespectively, certifying that, (B) that such resolutions were duly adopted and have not been amended or rescinded and (C) as to the knowledge incumbency and belief authority of such officer, the conditions specified in Section 9.3(aofficer(s) of C&T and Section 9.3(b) have been fulfilled;Merger Sub who executed this Agreement and the Transaction Documents; and
(diii) Since the date of this Agreement through the Closing Datesuch other certificates, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than documents and instruments as the Company and Holder Representative;
(f) The shares of Acquiror Common Stock may reasonably request related to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;transactions contemplated hereby.
(g) The Nominee Director designated At the Effective Time, C&T shall have delivered the Merger Consideration to the Paying Agent pursuant to the terms of Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated2.03(a).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement shall be subject to the satisfaction fulfillment or the Company’s waiver, at or prior to the Closing, of each of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror Parent and Merger Sub contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Article IV shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of both the Effective Date and the Closing Date, Date with the same effect as if though made anew at and as of that time, such date (except with respect to such those representations and warranties which speak that address matters only as to an earlier of a specified date, which representations and warranties shall be true and correct in all material respects at and as of such that specified date), except for changes after where the date failure of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the such representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct would not have a material adverse effect on Parent’s and Merger Sub’s ability to consummate the transactions contemplated hereby.
(b) Parent and Merger Sub shall have performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Agreements to be performed or complied with by Parent and Merger Sub prior to or on the Closing Date.
(c) No Governmental Order shall be in effect which restrains, hinders or prohibits or threatens to restrain, hinder or prohibit the consummation of the transactions contemplated by this Agreement; and there shall not have been threatened, nor shall there be pending, any Action by a Person or before any Governmental Authority which is reasonably likely to restrain, hinder, prohibit, delay or challenge the validity of any of the transactions contemplated by this Agreement.
(d) Parent and Merger Sub shall have delivered to the Company evidence satisfactory to the Company that the transfer of the Closing Shares to each Company Stockholder has been initiated as of the Closing Date, as if made anew at and as of that time, except with respect in addition to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior duly executed counterparts to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge Ancillary Agreements and belief of such officer, the conditions specified other documents and deliverables set forth in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;2.12.
(e) The Escrow Agreement Board of Directors of Parent (the “Parent’s Board”) shall have been duly executed by all parties other than appointed Xxxxx Xxxxxx to serve as a member of the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQParent’s Board, subject to official notice from NASDAQ Governmental Authority approval required by Law, until the next meeting of such issuance;
(g) The Nominee Director designated pursuant Parent’s stockholders and agree to Section 7.8 shall have been elected in accordance with nominate Xx. Xxxxxx for reelection at the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all next shareholders’ meeting of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of AcquirorParent’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedstockholders.
Appears in 1 contract
Samples: Merger Agreement
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is transactions contemplated hereby shall be further subject to the satisfaction fulfillment of the following additional conditions, any one or more unless waived by such parties pursuant to Section 10.4 of which may be waived in writing by the Companythis Agreement:
(a) (i) Each of the All representations and warranties of Acquiror the Buyer contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case Material respects as of the Closing Date, Date as if though made anew at and as of that time, such date (except with respect to such for representations and warranties which speak that are made as to an earlier of a specific date, which representations ). The Buyer shall have performed and warranties shall be true and correct complied in all material Material respects at with all covenants and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror agreements contained in this Agreement other than required to be performed and complied with by it at or prior to the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;Closing.
(b) Each of All documents required to have been executed and delivered by the covenants of Acquiror Buyer to be performed as of the Company at or prior to the Closing shall have been performed in all material respects;so executed and delivered, whether or not such documents have been or will be executed and delivered by the other parties contemplated thereby.
(c) Acquiror The Company shall have received from Trident Securities, a division of 50 McDonald Investments, Inc., a letter, dated as of the date of the Joint Proxy Statement, that the Merger is fair, from a financial point of view, to the holders of the Company's Shares.
(d) The Company shall have received an opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., counsel to the Buyer, dated as of the Clxxxxx Xxte, xx xxxx and substance reasonably acceptable to the Company.
(e) As of the Closing Date, the Company shall have received the following documents with respect to the Buyer:
(i) a true and complete copy of its articles of incorporation and all amendments thereto, certified by the jurisdiction of its incorporation as of a recent date;
(ii) a true and complete copy of its bylaws, certified by its Secretary or an Assistant Secretary;
(iii) a certificate from its Secretary or an Assistant Secretary certifying that (1) its articles of incorporation or charter have not been amended since the date of the certificate described in subsection (ii) above, and that nothing has occurred since the date of issuance of the certificate of existence specified in subsection (iv) below that would adversely affect its existence, and (2) Buyer has complied with the conditions set forth in this Section 8.2 as may be reasonably required by the Company, including without limitation a Certificate as to the matters set forth in Section 8.2(a);
(iv) a certificate of its corporate existence issued by the jurisdiction of its incorporation as of a recent date and a certificate of existence or authority as a foreign corporation issued as of a recent date by each of the jurisdictions in which it is qualified to do business as a foreign corporation;
(v) a true and complete copy of the resolutions of its board of directors and shareholders authorizing the execution, delivery and performance of this Agreement, and all instruments and documents to be delivered in connection herewith, and the transactions contemplated hereby, certified by its Secretary or an Assistant Secretary; and
(vi) a certificate from its Secretary or an Assistant Secretary certifying the incumbency and signatures of its officers who will execute documents at the Closing or who have executed this Agreement.
(f) The Exchange Agent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated as of the Closing Date, certifying that, to the knowledge effect that the Exchange Agent has received from the Buyer appropriate instructions and belief authorization for the Exchange Agent to issue a sufficient number of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Buyer Stock to be issued in connection with the Merger shall have been approved exchange for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior Company Shares and to the Closing, and all such funds released effect that the Exchange Agent has received the Total Cash Merger Consideration from the Trust Account shall be available Buyer and appropriate instructions and authorization to Acquiror for payment of deliver the Aggregate Total Cash Merger Consideration and the payment of Acquiror’s fees and expenses incurred in connection with as required by this Agreement and the transactions herein contemplatedAgreement.
Appears in 1 contract
Samples: Merger Agreement (Capital Bank Corp)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror SPAC contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Section 5.12 shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, except with respect to such representations and warranties which speak as if made anew to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of that timesuch date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement and (ii) each of the representations and warranties of SPAC contained in this Agreement (other than Section 5.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror is not a SPAC Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementEffect;
(b) Each of the covenants of Acquiror SPAC and the Merger Sub to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror The Company shall have delivered to each of the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified closing deliverables set forth in Section 9.3(a) and Section 9.3(b) have been fulfilled2.6(b);
(d) Since The size and composition of the post-Closing Domesticated SPAC Board of Directors shall have been appointed as set forth in Section 6.12; and
(e) There shall not have occurred and be continuing a SPAC Material Adverse Effect after the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedAgreement.
Appears in 1 contract
Samples: Business Combination Agreement (HH&L Acquisition Co.)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate fulfill its obligations under this Agreement, including without limitation the Merger is obligations set forth in Section 2.1 hereof, shall be subject to the satisfaction or waiver prior to the Closing of the following additional conditions, any one or more of which provided that the condition set forth at paragraph (e) below may not be waived in writing by without the Companyprior written consent of the Purchasers:
(a) (i) Each of the representations and warranties of Acquiror the Purchasers contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date as if made anew at on the Closing Date, and as the Company shall have received a certificate signed by each Purchaser who is an individual and by a duly authorized officer of that time, except with respect each other Purchaser to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;foregoing effect.
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror Purchaser shall have delivered to the Company $500,000 per Unit (subject to pro rata adjustment in the case of any Fractional Unit) for each of the Units to be issued and sold by the Company and purchased by the Purchaser pursuant to this Agreement, as set forth on Exhibit A hereto, such amount to be payable (i) by wire transfer of immediately available funds to an account with a certificate signed bank designated by an officer the Company, by notice to each of Acquiror, dated the Purchasers to be provided no later than two Business Days prior to the Closing Date, certifying that, or (ii) a federal (same day) funds check payable to the knowledge and belief order of the Company.
(c) No party to this Agreement (other than the Company) shall be in material breach of this Agreement unless such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) breach shall have been fulfilled;waived in writing by each of the other parties to this Agreement.
(d) Since The Company shall have received such other certificates, opinions, documents and instruments related to the date transactions contemplated hereby as may have been reasonably required by the Company and are customary for transactions of this Agreement through type, and all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the Closing Datetransactions contemplated by this Agreement, there shall not have been any Acquiror Material Adverse Effect;be reasonably satisfactory in form and substance to the Company and its counsel.
(e) The Escrow Agreement Company shall have been duly executed by all parties other than received, in form and substance reasonably satisfactory to the Company, an opinion, addressed to it and dated the Closing Date of Mayex, Xxowx & Xlatx, xxunsel for the Company and Holder Representative;
(fthe Bank, to the effect that there is "substantial authority" within the meaning of Treasury Regulation 1.6662-4(d) The shares of Acquiror Common Stock to be issued in connection with support the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all conclusion that consummation of the funds contained transactions contemplated by Section 2.1 hereof will not result in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment a change of ownership of the Aggregate Cash Consideration and Company for purposes of Section 382 of the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCode.
Appears in 1 contract
Conditions to the Obligations of the Company. The Company's obligation of to sell the Company to consummate the Merger is Securities shall be subject to the satisfaction or waiver by it of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing:
(a) (i) Each of the The representations and warranties of Acquiror Purchaser contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) Section 2.2 of this Agreement that are qualified as to materiality shall be true and correct in all material respectsaccurate, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties those not so qualified shall be true and correct accurate in all material respects at and as of such date, except for changes after the Closing Date as if made on the date hereof.
(b) Purchaser shall have performed and complied in all material respects with all agreements and conditions contained herein that are required to be performed or complied with by it on or before the Closing Date, including without limitation, payment of this Agreement the Purchase Price.
(c) Purchaser shall have received all consents, permits, approvals and other authorizations that may be required from, and made all such filings and declarations that may be required with, any person pursuant to any law, statute, regulation or rule (federal, state, local and foreign), or pursuant to any agreement, order or decree by which are Purchaser or any of its assets is bound, in connection with the transactions contemplated or expressly permitted by this Agreement, except for (i) notice requirements which may be fulfilled subsequent to the Closing Date and (ii) each consents, permits, approvals, authorizations, filings and declarations the failure to obtain or to undertake which will not adversely affect Purchaser's ability to perform its obligations under this Agreement or any agreement executed in accordance herewith.
(d) The Company shall have received a certificate, dated the Closing Date and signed by the President of the representations general partner of Purchaser, certifying that the conditions in Sections 3.2(a), (b) and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exceptionc) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at are satisfied on and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;.
(be) Each of the covenants of Acquiror to be performed as of or prior to the Closing The Company shall have been performed in all material respects;
received an opinion (c) Acquiror shall have delivered reasonably satisfactory to the Company a certificate signed by an officer of Acquirorand its counsel), dated the Closing Date, certifying that, from outside counsel to Purchaser in substantially the knowledge and belief form of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedExhibit C hereto. SECTION 4.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction (or waiver by the Company) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications Parent and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) Sub shall be true and correct accurate as of the Closing Date, as if made anew at and as of such time (other than those representations and warranties that time, except address matters only as of a particular date or only with respect to such representations and warranties which speak as to an earlier datea specific period of time, which representations and warranties shall need only be true and correct at and accurate as of such datedate or with respect to such period), except for, in each case, where the failure of such representations and warranties to be so true and accurate (xwithout giving effect to any limitation as to “materiality” or “material adverse effect” set forth therein) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror a Parent Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementEffect;
(b) Each each of Parent and Sub shall have performed in all material respects all of the covenants of Acquiror respective obligations hereunder required to be performed by Parent or Sub, as of the case may be, at or prior to the Closing shall have been performed in all material respectsClosing;
(c) Acquiror the Company shall have received a certificate signed by the chief financial officer of Parent, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied; and
(d) Parent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated in form and substance reasonably satisfactory to the Closing Date, certifying thatCompany, to the knowledge effect that, at the Effective Time, after giving effect to the Merger and belief the other transactions contemplated hereby, none of the Surviving Corporation or any of its Subsidiaries will (i) be insolvent (either because the financial condition is such officerthat the sum of its debts is greater than the fair value of its assets or because the present fair saleable value of its assets will be less than the amount required to pay its probable liability on its debts as they become absolute and matured), the conditions specified in Section 9.3(a) and Section 9.3(b(ii) have been fulfilled;
unreasonably small capital with which to engage in its business or (diii) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company incurred or plan to incur debts beyond its ability to pay as they become absolute and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedmatured.
Appears in 1 contract
Samples: Merger Agreement (Aquantive Inc)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction of the following additional conditions, further conditions (any one or more of which may be waived in writing whole or part by the Company:):
(a) Parent and Merger Sub shall have performed all of their respective material obligations hereunder required to be performed by them at or prior to the Effective Time;
(i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (iib) each of the representations and warranties of Acquiror contained in this Agreement Parent and Merger Sub (other than the Acquiror Fundamental Representations representations and warranties set forth in Section 4.6 (disregarding any qualifications and exceptions contained therein relating public reporting), which shall not be deemed to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exceptionbe covered by this condition set forth in this Section 7.3(b)) shall have been accurate in all respects as of the date of this Agreement and shall be true and correct accurate in all respects as of the Closing Date, Date as if made anew at on and as of that time, the Closing Date (except with respect to for any such representations and warranties which speak made as to an earlier of a specific date, which shall have been accurate in all material respects as of such date); provided, however, that, (i) for purposes of determining the accuracy of such representations and warranties as of the foregoing dates, all materiality qualifications limiting the scope of such representations and warranties shall be true disregarded and correct at (ii) any inaccuracies in such representations and as of warranties will be disregarded if all such dateinaccuracies (considered collectively) do not constitute, except for, in each case, (x) inaccuracies or omissions that and would not, individually or in the aggregate, not reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after or result in, a material adverse effect on the date ability of this Agreement which are Parent or Merger Sub to consummate the Merger or the other transactions contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respectshereby;
(c) Acquiror Parent shall have delivered to the Company a certificate signed by of an executive officer of Acquiror, dated Parent certifying the Closing Date, certifying that, to the knowledge and belief satisfaction of such officer, the conditions specified set forth in Section 9.3(aSections 7.3(a) and Section 9.3(b) have been fulfilled(b);
(d) Since Parent or Merger Sub shall have delivered the date of this Agreement through Payment Fund to the Closing Date, there shall not have been any Acquiror Material Adverse Effect;Paying Agent; and
(e) The Parent and Escrow Agreement Agent shall have been duly executed by all parties other than and delivered the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedEscrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Teradyne, Inc)
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror contained in Sections 5.1Section 5.12 shall be true and correct in all but de minimis respects as of the Closing Date as though made on and as of such date, 5.2except with respect to such representations and warranties which speak as to an earlier date, 5.3which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, 5.9, 5.14 (except for changes after the “Acquiror Fundamental Representations”) date of this Agreement which are contemplated by (except with respect to the first sentence of Section 7.5) or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Acquiror Fundamental Representations (other than Section 5.12) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated by (except with respect to the first sentence of Section 7.5) or expressly permitted by this AgreementAgreement or the Ancillary Agreements, (iii) the representation and warranty of Acquiror contained in Section 5.10(a) shall be true and Section correct as of the Closing Date as though made on and as of such date, and (iiiv) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations and the representation and warranty set forth in Section 5.10(a) (disregarding any qualifications and exceptions contained therein relating to materiality, materiality and material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date as if though made anew at on and as of that timesuch date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that have not had, and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected a material adverse effect on Acquiror or Acquiror’s ability to have an Acquiror Material Adverse Effect and (y) changes after consummate the date of this Agreement which are transactions contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of the Acquiror to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects;; provided, that for purposes of this Section 9.3(b), a covenant of Acquiror shall only be deemed to have not been performed or complied with if Acquiror has failed to perform or comply with any such covenant in any material respect and failed to cure such failure to perform or comply within twenty (20) days after notice of such breach (or if earlier, three (3) Business Days prior to the Agreement End Date); and
(c) Acquiror The Domestication shall have been completed as provided in Section 7.8 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCompany.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction or waiver (to the extent permitted by Applicable Law) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of Parent and Merger Subsidiary shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of Acquiror Parent contained in this Agreement (A) that are qualified by materiality or Parent Material Adverse Effect shall be true at and as of the Effective Time as if made at and as of such time (other than such representations or warranties that address matters only as of a certain date, which shall be true as of such date), and (B) that are not qualified by materiality or Parent Material Adverse Effect shall be true at and as of the Effective Time as if made at and as of such time (other than such representations or warranties that address matters only as of a certain date, which shall be true as of such date), provided, however, that notwithstanding anything herein to the contrary, the condition set forth in this Section 9.03(a)(ii)(B) shall be deemed to have been satisfied even if any representations and warranties of Parent (other than Sections 5.15.02(b), 5.25.05, 5.3, 5.95.06(b), 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall and 5.15 which must be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be ) are not so true and correct in all but de minimis respects, in each case as unless the failure of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as of Parent to an earlier date, which representations and warranties shall be so true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would notcorrect, individually or in the aggregate, has had or would reasonably be expected to have an Acquiror a Parent Material Adverse Effect Effect, and (yiii) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing Company shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company received a certificate signed by an executive officer of Acquiror, dated Parent to the Closing Date, certifying foregoing effect; provided that, the Company agrees that it shall not exercise its right to waive the knowledge and belief of condition contained in this Section 9.03(a) should such officer, waiver cause Parent and/or Merger Subsidiary not to be able to obtain the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Financing.
(db) Since the date of this Agreement through the Closing Date, there There shall not have been occurred and be continuing as of or otherwise arisen before the Effective Time any Acquiror event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect;
Effect (ebut excluding (x) The Escrow Agreement shall have been duly executed by all parties other than proceedings of the Company Competition Appeal Tribunal or any higher court following satisfaction of the condition in Section 9.01(c)(i)(B)(z), Section 9.01(c)(ii)(B)(z), Section 9.01(c)(iii) or Section 9.01(c)(iv) and Holder Representative;
(fy) The shares of Acquiror Common Stock any proceeding before or made to be issued the Irish High Court in connection with the Merger Merger); provided that, the Company agrees that it shall have been approved for listing on NASDAQ, subject not exercise its right to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with waive the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds condition contained in this Section 9.03(b) should such waiver cause Parent and/or Merger Subsidiary not to be able to obtain the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedFinancing.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation -------------------------------------------- of the Company to consummate effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror Parent and Acquisition contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respectscorrect, except for Sections 5.9 to the extent that the aggregate of all breaches thereof would not have a Material Adverse Effect on Parent and 5.14except to the extent such breach is with respect to Section 3.2 and occurred as a result of any issuance of or execution of any agreement to issue capital stock of Parent in connection with any financing or acquisition transaction, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew date hereof and at and as of that time, the Effective Time with the same effect as if made at and as of the Effective Time (except with respect to the extent such representations and warranties which speak as specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except fordate and, in each caseany event, (x) inaccuracies or omissions that would not, individually or in subject to the aggregate, reasonably be expected to have an Acquiror foregoing Material Adverse Effect qualification) and, at the Closing, Parent and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror Acquisition shall have delivered to the Company a certificate signed to that effect, executed by an officer two (2) executive officers of AcquirorParent and Acquisition;
(b) each of the material covenants and obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, dated at the Closing DateClosing, certifying thatParent and Acquisition shall have delivered to the Company a certificate to that effect, executed by two (2) executive officers of Parent and Acquisition; provided, however, that in connection with the compliance by Parent or Acquisition with any applicable law (including the HSR Act) or obtaining the consent or approval of any Governmental Entity whose consent or approval may be required to consummate the transactions contemplated by this Agreement, Parent shall not be (i) required, or be construed to be required, to sell or divest any material assets or business or to restrict in any material respect any business operations in order to obtain the knowledge consent or successful termination of any review of any such Governmental Entity regarding the transactions contemplated hereby or (ii) prohibited from owning, and belief no material limitation shall be imposed on Parent's ownership of, any material portion of the Company's business or assets;
(c) the Company shall have received the opinion of tax counsel to the Company or tax counsel to Parent to the effect that (i) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on such officer, the conditions specified in Section 9.3(a) representations as such counsel reasonably deems appropriate and Section 9.3(b) such opinion shall not have been fulfilledwithdrawn or modified in any material respect;
(d) Since the date Company shall have received the opinion of this Agreement through legal counsel to Parent and Acquisition as to the Closing Date, there shall not have been any Acquiror Material Adverse Effect;matters set forth in Exhibit C; ---------
(e) The Escrow Agreement there shall have been duly executed by all parties other than the Company and Holder Representativeoccurred no Material Adverse Effect on Parent;
(f) The shares the Securityholder Agent shall have received, on behalf of Acquiror all shareholders of the Company, the Registration Rights Agreement executed by Parent; and
(g) the Shares of Parent Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQthe Nasdaq National Market, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate effect the Merger is Closing shall be subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each The representations of the representations and warranties of Acquiror contained Investors in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”Section 1.1(b) of this Agreement shall be true and correct (A) in all material respectsthe case of the Registration Statement and any post-effective amendments thereto, except for Sections 5.9 at the respective times referred to in Section 1.1(c), and 5.14in the case of the Prospectus, which all be true as of its date, and correct in all but de minimis respects, in each case (B) as of the Closing Date, except that in the case of this clause (B) all references to any time period or date referred to in Section 1.1(b) shall be deemed to be references to the Closing Date. All other representations and warranties of the Investors contained in this Agreement (i) that are qualified by materiality, material adverse effect or words of similar import, shall be true and correct as if made anew at of the date hereof and as of the Closing (except to the extent that time, except with respect to any such representations representation and warranties which speak warranty expressly speaks as to of an earlier date, in which representations case such representation and warranties warranty shall be true and correct as of such earlier date) and (ii) that are not qualified by materiality, material adverse effect or words of similar import, shall be true and correct in all material respects at as of the date hereof and as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, except for changes after the date of this Agreement in which are contemplated or expressly permitted by this Agreement, case such representation and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) warranty shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and in all material respects as of such earlier date).
(b) The Investors shall have performed in all material respects all of their obligations hereunder required to be performed by it, except forand complied with the covenants hereunder applicable to them in all material respects, in each caseat or prior to the Closing.
(c) Since the date of this Agreement, (x) inaccuracies there shall not have been any material adverse effect or omissions any effect that would notwould, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect materially and (y) changes after adversely affect the date of Investors’ ability to perform their obligations under this Agreement which are or consummate the transactions contemplated or expressly permitted by this Agreement;hereby on a timely basis.
(bd) Each of the covenants of Acquiror to be performed as of or prior to the Closing The Company shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company received a certificate certificate, signed by an officer of Acquiror, dated the Closing Dateeach Investor, certifying that, as to the knowledge and belief of such officer, the conditions specified matters set forth in Section 9.3(a5.2(a), (b) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedc).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) Parent and Merger Sub shall have performed in all material respects each of their obligations under this Agreement required to be performed by them at or prior to the Effective Time;
(b) (i) Each of the representations and warranties of Acquiror contained Parent and Merger Sub set forth in Sections 5.15.01, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”5.02 and 5.04(a) of this Agreement shall be true and correct in all material respectsrespects as of the date of this Agreement and at and as of the Effective Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, except for Sections 5.9 in which case as of such date or period); (ii) the representations and 5.14, which all warranties of Parent set forth in Section 5.05 of this Agreement shall be true and correct (except for de minimis inaccuracies) in all but de minimis respects, in each case respects as of the Closing Date, as if made anew date of this Agreement and at and as of that time, the Effective Time (except with respect to the extent any such representations and warranties which speak as representation or warranty expressly relates to an earlier datedate or period, in which representations case as of such date or period); (iii) the representation and warranties warranty of Parent set forth in Section 5.11 of this Agreement shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this the Agreement, ; and (iiiv) each of the representations and warranties of Acquiror contained Parent set forth in this Agreement (other than those referred to in the Acquiror Fundamental Representations preceding clauses (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exceptioni)-(iii)) shall be true and correct as of the Closing Date, as if made anew date of this Agreement and at and as of that timethe Effective Time (except to the extent any such 77 representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except with respect to where the failure of such representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct at has not had, and as of such date, except for, in each case, (x) inaccuracies or omissions that would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have an Acquiror a Parent Material Adverse Effect Effect, in the case of clauses (i), (ii) and (yiv) changes after the date of disregarding for this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed purpose all “Parent Material Adverse Effect” and “materiality” qualifications contained in all material respectssuch representations and warranties;
(c) Acquiror there shall not have occurred since the date hereof a Parent Material Adverse Effect; and
(d) Parent shall have delivered to the Company a certificate signed by an executive officer of Acquiror, Parent dated as of the Closing Date, Date certifying that, to the knowledge and belief of such officer, that the conditions specified in Section 9.3(aparagraphs (a), (b) and (c) of this Section 9.3(b) 9.03 have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedsatisfied.
Appears in 1 contract
Samples: Merger Agreement (Denbury Inc)
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is subject to the satisfaction at or prior to the Effective Time of each of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror Parent and Acquisition Sub contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew (i) at and as of that time, the date hereof (except with respect to the extent such representations and warranties which speak as specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date) in all material respects (not taking into account any “materiality” qualifications or dollar “thresholds” set forth in such representations and warranties) and (ii) at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, Closing Date with the same effect as if made on and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, Date (except with respect to the extent such representations and warranties which speak as specifically related to an earlier date, in which case such representations and warranties shall be true and correct at and as of such earlier date), except for, as would not result in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror a Material Adverse Effect on Parent (not taking into account any “materiality” qualifications or dollar “thresholds” set forth in such representations and warranties) and, at the Closing, Parent and Acquisition Sub shall have delivered to the Company a certificate to the effect of clauses (i) and (yii) changes after the date above, executed by an executive officer of this Agreement which are contemplated or expressly permitted by this AgreementParent and Acquisition Sub;
(b) Each of the covenants and obligations of Acquiror Parent and Acquisition Sub to be performed as of at or prior before the Effective Time pursuant to the Closing this Agreement shall have been duly performed in all material respects;
(c) Acquiror respects at or before the Effective Time and, at the Closing, Parent and Acquisition Sub shall have delivered to the Company a certificate signed to that effect, executed by an executive officer of Acquiror, dated the Closing Date, certifying that, Parent and Acquisition Sub;
(c) Each of Parent and Acquisition Sub shall have executed and delivered to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Company each Transaction Agreement to which it is a party; and
(d) Since Except to the date extent compliance by the Company with the provisions of Section 4.19 and the condition set forth in Section 5.3(t) is waived by Parent and Acquisition Sub (in their sole and absolute discretion) prior to completion of the Audit at a time at which all of the other conditions set forth in this Agreement through Article 5 (other than those conditions that by their terms are to be satisfied or waived at the Closing DateClosing) have been satisfied or waived, there the Audited Financial Statements referred to in Section 4.19 shall not have been any Acquiror Material Adverse Effect;
show both (ei) The Escrow Agreement shall have been duly executed by all parties other than that the sum of (A) the consolidated revenue of the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with its subsidiaries for the Merger shall have been approved year ended December 31, 2009 plus the consolidated revenue for listing on NASDAQthe Company and its subsidiaries for the year ended December 31, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve 2008, each as shown on the Acquiror Board effective Audited Financial Statements (the first Business Day after “Two Year Audited Revenue Amount”) is more than thirty (30%) percent higher than (B) the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all sum of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment consolidated revenue of the Aggregate Cash Consideration Company and its subsidiaries for the payment year ended December 31, 2009 plus the consolidated revenue for the Company and its subsidiaries for the year ended December 31, 2008, each as shown on the Financial Statements (the “Two Year Unaudited Revenue Amount”) and (ii) that the sum of Acquiror’s fees (A) the consolidated net income of the Company and expenses incurred in connection with this Agreement its subsidiaries for the year ended December 31, 2009 plus the consolidated net income for the Company and its subsidiaries for the transactions herein contemplatedyear ended December 31, 2008, each as shown on the Audited Financial Statements (the “Two Year Audited Net Income Amount”) is more than $6,000,000 higher than (B) the sum of the consolidated net income of the Company and its subsidiaries for the year ended December 31, 2009 plus the consolidated net income for the Company and its subsidiaries for the year ended December 31, 2008, each as shown on the Financial Statements (the “Two Year Unaudited Net Income Amount”).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction at or prior to the Closing of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Representations shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as if made anew to an earlier date, which representations and warranties shall be true and correct in all respects at and as of that timesuch date, (ii) the representations and warranties of Acquiror made pursuant to Section 6.12(a), Section 6.12(b) and Section 6.12(c) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception), shall be true and correct in all respects other than de minimis inaccuracies, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all respects other than de minimis inaccuracies at and as of such date, (iii) the representations and warranties of Acquiror made pursuant to Section 6.10 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception), other than pursuant to clause (b) thereof, shall be true and correct in all material respects and the representation and warranty of Acquiror made pursuant to Section 6.10(b) shall be true and correct in all respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects (or, in the case of Section 6.10(b), in all respects) at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (iiiv) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations and the representations and warranties set forth in Section 6.10, Section 6.12(a), Section 6.12(b) and Section 6.12(c) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct correct, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except in the case of this clause (iv) for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementEffect;
(b) Each each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Merger Agreement (ECP Environmental Growth Opportunities Corp.)
Conditions to the Obligations of the Company. The obligation hereunder of the Company to consummate issue and sell the Merger Securities to the Investor is further subject to the satisfaction satisfaction, at or before each Closing Date, of each of the following additional conditions, any one or more each of which are for the Company’s sole benefit and may be waived in writing by the CompanyCompany at any time in its sole discretion:.
(a) The Investor shall have executed this Agreement and the Registration Rights Agreement and delivered the same to the Company.
(ib) Each of The Investor shall have delivered to the Company the aggregate Put Amount for the Securities being purchased by the Investor.
(c) The representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Investor shall be true and correct in all material respects, except for Sections 5.9 other than representations and 5.14warranties which are qualified by materiality, which all shall be true and correct in all but de minimis respects, in each case as of the date when made and as of the applicable Closing Date, as if made anew at and as of that time, except with respect to such other than representations and warranties which speak are made as to an earlier of a specific date, which representations and warranties shall be true and correct in all material respects at and as of such daterespects, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the other than representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to which are qualified by materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) which shall be true and correct in all respects, as of the Closing Datedate when made, as if made anew at and as of that time, except with respect to such other than the representations and warranties which speak warrants as to an earlier dateset forth in Section 3.04, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;all respects.
(bd) Each of The Investor shall have performed, satisfied and complied with the covenants of Acquiror covenants, agreements and conditions required by the Transaction Documents to be performed as of performed, satisfied or prior to complied with by the Investor on or before such Closing shall have been performed Date in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;.
(e) The Escrow Agreement No statute, rule, regulation, executive order, decree, ruling or injunction shall have been duly executed enacted, entered, promulgated or endorsed by all parties other than any court or governmental authority of competent jurisdiction which prohibits the Company and Holder Representative;consummation of the Equity Financing Transactions.
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger Registration Statement shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;declared effective and shall remain effective.
(g) The Nominee Director designated pursuant No stop order suspending the effectiveness of the Registration statement shall be in effect or to Section 7.8 the Company’s knowledge shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;be pending or threatened.
(h) Acquiror Neither the Company nor the Investor shall have made all necessary and appropriate arrangements received notice that the SEC has issued or intends to issue a stop order with respect to the Trustee to have all Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the funds contained Registration Statement, either temporarily or permanently, or intends or has threatened to do so (unless the SEC’s concerns have been addressed).
(i) If applicable, the shareholders of the Company shall have approved the issuance of any Shares in excess of the Trust Account disbursed to Acquiror immediately prior Maximum Common Stock Issuance in accordance with Section 2.05 or the Company shall have obtained appropriate approval pursuant to the Closing, requirements of applicable state and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration federal laws and the payment Company’s Articles of Acquiror’s fees Incorporation and expenses incurred in connection with this Agreement and the transactions herein contemplatedBy-laws.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is transactions contemplated hereby shall be further subject to the satisfaction fulfillment of the following additional conditions, any one or more of which may be unless waived in writing by the Companyparties pursuant to Section 10.4 of this Agreement:
(a) (i) Each For the purpose of the this Section 8.2 only, all representations and warranties of Acquiror the Parent and the Buyer contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement and the Parent's and Buyer's Disclosure Schedule shall be true and correct accurate in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, Date as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of on the Closing Date, as if made anew at and as of that time, except with respect to such for representations and warranties which speak that are made as to an earlier date, which of a specific date and except for inaccuracies of representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would notthe circumstances giving rise to which, individually or in the aggregate, could not reasonably be expected to have an Acquiror result in a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and (y) changes after warranties, all qualifications by reference to Material Adverse Effect or Materiality contained in such representations and warranties shall be disregarded). Each of the date of Parent and the Buyer shall have performed and complied in all Material respects with all covenants and agreements contained in this Agreement which are contemplated required to be performed and complied with by it at or expressly permitted by this Agreement;prior to the Closing.
(b) Each of All documents required to have been executed and delivered by the covenants of Acquiror Parent and the Buyer to be performed as of the Company at or prior to the Closing shall have been performed in all material respects;so executed and delivered, whether or not such documents have been or will be executed and delivered by the other parties contemplated thereby.
(c) Acquiror The Company shall have received from Howe, Barnes Hoefer & Arnette, Inc., a bringdown of its opinion datex Xxcemxxx 00, 0000, to xxx xxfect that, as of a date within ten (10) Business Days prior to the mailing of the Proxy Statement to the Company's shareholders, the Merger Consideration is fair, from a financial point of view, to the holders of Company Shares.
(d) The Company shall have received an opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., counsel to the Parent and the Buyer, datxx xx xx thx Xxxxxng Date, reasonably satisfactory to the Company in form and substance, concerning matters relating to the Parent and the Buyer.
(e) The Company shall have received an opinion of Dixon Hughes PLLC, certified public accountants, dated as of the Xxxxxxx Xxxx, to the effect that the Merger will qualify as a reorganization within the meaning of Section 368 of the Code. The issuance of such opinion may be conditioned on the receipt of representation letters from the Company, the Parent and the Buyer, in each case, in form and substance reasonably satisfactory to Dixon Hughes PLLC. The specific provisions of each such representatxxx xxxxxx shall be in form and substance reasonably satisfactory to such counsel, and each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect.
(f) As of the Closing Date, the Company shall have received the following documents with respect to each of the Parent and (except in the case of clause (vii)) the Buyer:
(i) a true and complete copy of its articles of incorporation and all amendments thereto, certified by the North Carolina Secretary of State as of a recent date;
(ii) a true and complete copy of its bylaws, certified by its Secretary or an Assistant Secretary;
(iii) a certificate from its Chief Executive Officer or Chief Financial Officer (unless both are reasonably available on the Closing Date, in which case from both such officers) certifying that (A) its articles of incorporation have not been amended since the date of the certificate described in subsection (i) above, and that nothing has occurred since the date of issuance of the certificate of existence specified in subsection (iv) below that would adversely affect its existence, and (B) it has complied with the conditions set forth in this Section 8.2 as may be reasonably required by the Company, including without limitation a certificate as to the matters set forth in Section 8.2(a);
(iv) a certificate of its corporate existence issued by the North Carolina Secretary of State;
(v) true and complete copies of the resolutions of its board of directors and of the Buyer's shareholder authorizing the execution, delivery and performance of this Agreement, and all instruments and documents to be delivered in connection herewith, and the transactions contemplated hereby, certified by its Secretary or an Assistant Secretary;
(vi) a certificate from its Chief Executive Officer, Chief Financial Officer, Secretary or an Assistant Secretary certifying the incumbency and signatures of its officers who will execute documents at the Closing or who have executed this Agreement; and
(vii) a certificate of The Federal Reserve Bank of Richmond with respect to the Parent.
(g) There shall have been (i) no Material Adverse Effect with respect to the Parent or the Buyer and (ii) no event, occurrence or circumstance that, individually or taken together with any other events, occurrences, or circumstances, has had a Material adverse impact on the ability of the Parent or the Buyer to perform its obligations under this Agreement or to consummate the Merger or the other transactions contemplated by this Agreement.
(h) The Exchange Agent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated as of the Closing Date, certifying thatto the effect that the Exchange Agent has received from the Parent appropriate instructions and authorization for the Exchange Agent to issue the Maximum Total Stock Merger Consideration, to the knowledge extent required by this Agreement, and belief of to the effect that the Exchange Agent has received from the Parent the Maximum Total Cash Merger Consideration and appropriate instructions and authorization to deliver such officerMerger Consideration, all to the conditions specified extent required by this Agreement.
(i) The Buyer shall have executed and delivered (i) the Bullard Consulting Agreement to John W. Bullard and (ii) the Farrah Xxxxxxxent Agreement to Wayne O. Xxxxxx.
(x) Xxx Xxxxxxy, acting reasonably, shall be satisfied that the transactions described in Section 9.3(a2.6(a) and Section 9.3(b) have been fulfilled;
(d) Since will not subject the date holders of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock Options to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.additional income tax under Code ss. 409A.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate effect the Merger is shall be subject to the satisfaction fulfillment at or before the Effective Time of the following additional conditions, any one or more of which (except for the conditions set forth in Section 5.02(b) and (d)) may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true Buyers and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror Buyer Subsidiary contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating that are qualified as to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at date of this Agreement and as of that time, except with respect immediately prior to such the Effective Time (other than representations and warranties which speak address matters only as to an earlier of a particular date, in which case such representations and warranties shall be true and correct at correct, on and as of such particular date), with the same force and effect as if then made; and (ii) the representations and warranties of the Buyers and the Buyer Subsidiary contained in this Agreement that are not qualified as to material adverse effect shall be true and correct as of the date of this Agreement and as of immediately prior to the Effective Time (other than representations and warranties which address matters only as of a particular date, in which case such representations and warranties shall be true and correct, on and as of such particular date), with the same force and effect as if then made, except for, in each case, (x) inaccuracies or omissions that where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Buyers; and the Company shall have received a certificate to such effect signed by an Acquiror Material Adverse Effect executive officer of the Buyers and (y) changes after the date Buyer Subsidiary. Each of the Buyers and the Buyer Subsidiary shall have performed and complied in all material respects with the agreements and obligations contained in this Agreement which are contemplated or expressly permitted required to be performed and complied with by this Agreement;it immediately before the Effective Time, and the Company shall have received a certificate to such effect signed by an executive officer of each of the Buyers and the Buyer Subsidiary.
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing This Agreement shall have been performed approved at the Company Shareholders' Meeting referred to in all material respects;Section 4.02 by the vote required by the Tennessee Act and the Company's Charter.
(c) Acquiror There shall have delivered not be pending any action or proceeding brought by any Governmental Authority requesting or threatening an injunction, writ, order, judgment or decree that, in the reasonable judgment of the Company, could reasonably likely, if issued, restrain or prohibit the consummation of any of the transactions contemplated hereby, require rescission of this Agreement or any such transactions, result in material damages to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officerCompany, the conditions specified Subsidiaries, or their respective officers or directors if the transactions contemplated hereby are consummated or limit the benefit expected to be derived by the Company's stockholders as a result of the transactions contemplated hereby, nor shall there be in Section 9.3(a) and Section 9.3(b) have been fulfilled;effect any provision of applicable law prohibiting the consummation of the Merger or any injunction, writ, judgment, preliminary restraining order or other order or decree of any nature issued by a court or governmental agency of competent jurisdiction directing that any of the transactions provided for herein not be consummated as so provided.
(d) Since All applicable waiting periods (and any extension thereof) under the date of this Agreement through the Closing Date, there HSR Act shall not have expired or otherwise been any Acquiror Material Adverse Effect;terminated.
(e) The Escrow Agreement shall have been duly executed All actions by all parties other than or in respect of or filings with any governmental body, agency, official or authority required to permit the Company and Holder Representative;
(f) The shares consummation of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedor obtained.
Appears in 1 contract
Samples: Merger Agreement (Shoneys Inc)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is fulfill its obligations under Section 2.1 hereof shall be subject to the satisfaction or waiver prior to the Closing of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror the Purchaser contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date as if made anew at on the Closing Date (or on the date when made in the case of any representation and as of that time, except with respect to such representations and warranties warranty which speak as specifically relates to an earlier date), which representations and warranties the Company shall be true and correct at and as have received a certificate signed by a duly authorized representative of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in Purchaser to the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;foregoing effect.
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror The Purchaser shall have delivered to the Company a certificate signed dollar amount equal to the principal amount of the Notes to be issued and sold by the Company and purchased by the Purchaser pursuant to this Agreement, as set forth on Exhibit A hereto, such amount to be payable (i) by wire transfer of immediately available funds to an officer of Acquiroraccount with a bank designated by the Company, dated by notice to the Purchaser to be provided no later than two Business Days prior to the Closing Date, certifying that, or (ii) a federal (same day) funds check payable to the knowledge and belief order of the Company.
(c) No party to this Agreement (other than the Company) shall be in material breach of this Agreement unless such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) breach shall have been fulfilled;waived in writing by each of the other parties to this Agreement.
(d) Since The Company shall have obtained in writing all consents of third parties necessary to permit the date consummation of the transactions contemplated by this Agreement through and the Closing Date, there Related Agreements (other than the consents referred to in Section 4.2(f) hereof) and no such consent shall not have been contain any Acquiror Material Adverse Effect;term or condition that the Company reasonably deems to be materially disadvantageous to the Company.
(e) The Escrow Agreement Company shall have received such other certificates, opinions, documents and instruments related to the transactions contemplated hereby as may have been duly executed reasonably required by all parties other than the Company and Holder Representative;
(f) The shares are customary for transactions of Acquiror Common Stock to be issued this type, and all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the Merger transactions contemplated by this Agreement, shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected be reasonably satisfactory in accordance with the DGCL form and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior substance to the Closing, Company and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedits counsel.
Appears in 1 contract
Samples: Secured Convertible Note Purchase Agreement (Value Partners LTD /Tx/)
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is transactions contemplated hereby shall be further subject to the satisfaction fulfillment of the following additional conditions, any one or more of which may be unless waived in writing by the CompanyCompany pursuant to Section 11.4 of this Agreement:
(a) (i) Each of the All representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror Buyer contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date as if though made anew at and as of that time, such date (except with respect to such for representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and that are made as of such a specific date, except for, ). The Buyer shall have performed and complied with all covenants and agreements contained in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated required to be performed and complied with by it at or expressly permitted by this Agreement;prior to the Closing.
(b) Each of All documents and agreements required to have been executed and delivered by the covenants of Acquiror Buyer to be performed as of the Company at or prior to the Closing shall have been performed in all material respects;so executed and delivered, whether or not such documents have been or will be executed and delivered by the other parties contemplated thereby.
(c) Acquiror The Company shall have received from Trident Securities, a division of McDonald Investments Inc., a letter, dated not more than three Business Days prior to the Proxy Statement, stating that the Merger Consideration is fair, from a financial point of view, to the holders of the Company's Shares.
(d) The Company shall have received an opinion of Robinson, Bradshaw & Hinson, P.A., xxxxxel xx xxx Buyxx, xxted as of the Closing Date, in form and substance reasonably acceptable to the Company.
(e) As of the Closing Date, the Company shall have received the following documents with respect to the Buyer:
(i) a true and complete copy of its certificate of incorporation and all amendments thereto, certified by the jurisdiction of its incorporation as of a recent date;
(ii) a true and complete copy of its bylaws, certified by its Secretary or an Assistant Secretary;
(iii) a certificate from its Secretary or an Assistant Secretary certifying that its certificate of incorporation have not been amended since the date of the certificate described in subsection (i) above and that nothing has occurred since such date that would adversely affect its existence;
(iv) a true and complete copy of the resolutions of its board of directors and shareholders authorizing the execution, delivery and performance of this Agreement, and all instruments and documents to be delivered in connection herewith, and the transactions contemplated hereby, certified by its Secretary or an Assistant Secretary; and
(v) a certificate from its Secretary or an Assistant Secretary certifying the incumbency and signatures of its officers who will execute documents at the Closing or who have executed this Agreement.
(f) The Exchange Agent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated as of the Closing Date, certifying that, to the knowledge effect that the Exchange Agent has received from the Buyer appropriate instructions and belief authorization for the Exchange Agent to issue a sufficient number of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Buyer Stock to be issued in connection with the Merger shall have been approved exchange for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior Company Shares and to the Closing, and effect that the Exchange Agent has received a sufficient amount of cash to pay in exchange for all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Company Shares and has appropriate instructions and authorization to deliver the cash Merger Consideration and the payment of Acquiror’s fees and expenses incurred in connection with as required by this Agreement and the transactions herein contemplatedAgreement.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate effect the Merger is Contemplated Transactions shall be subject to the satisfaction on or prior to the Closing Date of each of the following additional conditions, any one or more of which may be conditions unless waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained Purchaser set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Section 4 that is not qualified by "materiality" or "Material Adverse Effect" shall be true and correct in all material respects, except for Sections 5.9 without regard to whether Purchaser has, had or hereafter acquires Knowledge that any such representation or warranty is not true or correct, as of the date hereof and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if though made anew at and as of that time, again on the Closing Date (except with respect to the extent such representations and warranties expressly relate to a specific date other than the date of this Agreement in which speak as to an earlier date, which case such representations and warranties shall be true and correct in all material respects at and as of such date); provided, except that no representation or warranty shall fail to be true and correct in all material respects for changes after the date purposes of this Agreement Section 6.2.1 solely as a result of changes in the Business, properties, assets or Liabilities of Purchaser which are expressly required, permitted or contemplated or expressly permitted by this Agreement, ; and (iib) each of the representations and warranties of Acquiror contained set forth in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to Section 4 that is qualified by "materiality, material adverse effect and Acquiror " or "Material Adverse Effect or any similar qualification or exception) Effect" shall be true and correct in all respects, without regard to whether Purchaser has, had or hereafter acquires Knowledge that any such representation or warranty is not true or correct, as of the date hereof and as of the Closing Date, as if though made anew at and as of that time, again on the Closing Date (except with respect to the extent such representations and warranties expressly relate to a specific date other than the date of this Agreement in which speak as to an earlier date, which case such representations and warranties shall be true and correct at and in all respects as of such date); provided, except for, in each case, (x) inaccuracies that no representation or omissions that would not, individually or warranty shall fail to be true and correct for the purposes of this Section 6.2.1 solely as a result of changes in the aggregateBusiness, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date properties, assets or Liabilities of this Agreement Purchaser which are expressly required, permitted or contemplated or expressly permitted by this Agreement;.
(b) Each of the 6.2.2. Purchaser shall have performed in all material respects all covenants of Acquiror and agreements required to be performed as of by Purchaser under this Agreement at or prior to the Closing shall have been performed in all material respects;Date.
(c) Acquiror 6.2.3. Purchaser shall have delivered or caused to be delivered (and if applicable, shall execute or cause to be executed) the Company a certificate signed documents, certificates and instruments required to be delivered or caused to be delivered by an officer of Acquiror, dated Purchaser at the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated7.2.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate hereunder on each Purchase Date (including the Merger is Initial Purchase Date) shall be subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the All representations and warranties of Acquiror the Seller contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 on such Purchase Date and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties Seller shall be true and correct in compliance in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;its respective obligations hereunder.
(b) Each of the covenants of Acquiror to be performed as of On or prior to the Closing such Purchase Date, there shall have been performed made and there shall be in full force and effect all material respects;filings (including, without limitation, UCC filings), recordings and/or registrations, and there shall have been given, or taken, any notice or any other similar action as may be necessary or, to the extent requested by the Company, advisable, in order to establish, perfect, protect and preserve the right, title and interest, remedies, powers, privileges, liens and security interests of the Company and the Collateral Agent granted pursuant to this Agreement or the Funding Agreement, as the case may be, and the Company and the Collateral Agent shall have received evidence satisfactory to them of all of the foregoing.
(c) Acquiror All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement shall have delivered be satisfactory in form and sub stance to the Company a certificate signed by an officer and the Company shall have received from the Seller copies of Acquirorall documents (including, dated the Closing Datewithout limitation, certifying that, records of corporate proceedings) relevant to the knowledge and belief of such officer, transactions herein contemplated as the conditions specified in Section 9.3(a) and Section 9.3(b) Company may have been fulfilled;reasonably requested.
(d) Since The Company shall be permitted by the date of this Funding Agreement through to purchase Receivables on such Purchase Date and shall have cash in the Closing Date, there Collection Account or shall not have been any Acquiror Material Adverse Effect;obtained funding from Edison in an amount sufficient to fund such purchase.
(e) The Escrow Agreement Seller shall have been duly executed by be in compliance in all parties other than the Company and Holder Representative;material respects with its obligations hereunder.
(f) The shares No Company Event of Acquiror Common Stock to be issued Default described in connection with clause (d) or (e) of the Merger definition of Company Event of Default shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;occurred and be continuing.
(g) The Nominee Director designated pursuant to Section 7.8 No Seller Event of Default shall have been elected in accordance with the DGCL occurred and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;be continuing.
(h) Acquiror The Wind-Down Date shall not have occurred.
(i) No Collection Agent Event of Default as defined in Section 5.05 hereof shall have made all necessary and appropriate arrangements with the Trustee to have all occurred.
(j) Each of the funds contained Parent Credit Agreement and the Intercreditor Agreement shall be in full force and effect and no event of default under the Trust Account disbursed to Acquiror immediately prior to the Closing, Parent Credit Agreement shall have occurred and all such funds released from the Trust Account be continuing.
(k) The Guaranty Letter of Credit shall be in full force and effect and there shall be available to Acquiror for payment drawing thereunder an amount that is not less than 2% of the Aggregate Cash Consideration Outstanding Principal Receivables after giving effect to the purchase to be made on such Purchase Date.
(l) The Seller and GECC shall have received Support Agreements executed by the chief executive officer, treasurer and data processing manager of the Parent and the payment president and data processing manager of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedSeller.
Appears in 1 contract
Samples: Purchase and Administration Agreement (Baldwin Piano & Organ Co /De/)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction fulfillment at or prior to the Closing Date of each of the following additional conditions, any one or more all of which may be waived in writing whole or in part by the CompanyCompany to the extent permitted by applicable Law:
(a) (i) Each of the The representations and warranties of Acquiror Parent and Merger Sub contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement herein shall be have been true and correct in all material respects, except for Sections 5.9 respects when made and 5.14, which all be true on and correct in all but de minimis respects, in each case as of the Closing Date, Date as if though made anew at on and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, Date (except with respect to such for representations and warranties which speak made as to an earlier of a specified date, which representations and warranties shall be true and correct at and speak only as of such the specified date), except for, in each case, (x) inaccuracies or omissions that would notwhere the failure to be true, individually or in the aggregate, has not had or is not reasonably be expected to have an Acquiror a Material Adverse Effect on Parent and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;its subsidiaries taken as a whole.
(b) Each of the covenants of Acquiror Parent shall have performed or complied in all material respects with all agreements and conditions contained herein required to be performed as of or complied with by it prior to or at the Closing shall have been performed in all material respects;time of the Closing.
(c) Acquiror Parent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated the Closing Date, signed by the President or Chief Financial Officer of Parent certifying that, as to the knowledge and belief fulfillment of such officer, the conditions specified in Section 9.3(aSections 7.3(a) and Section 9.3(b) have been fulfilled;7.3(b).
(d) Since the date The Company shall have received an opinion of this Agreement through Xxxxx & Xxxxxx, L.L.P., dated the Closing Date, there to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code; and (ii) each of Parent, Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. The issuance of such opinion shall be conditioned on the receipt by such counsel of representation letters from each of Parent, Merger Sub and the Company, substantially in the forms attached hereto as EXHIBITS C and D in each case, in form and substance reasonably satisfactory to Xxxxx & Xxxxxx, L.L.P. Each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any Acquiror Material Adverse Effect;material respect.
(e) The Escrow All authorizations, consents or approvals of any Governmental Entity (other than those specified in Section 7.1(b)) required in connection with the execution and delivery of this Agreement and the performance of the obligations hereunder shall have been duly executed by all parties other than obtained, without any limitation, restriction or condition that is reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries taken as a whole (or, were such effect applied to Parent and its subsidiaries giving effect to the Merger, is reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries (including the Surviving Corporation) taken as a whole), except for such authorizations, consents or approvals, the failure of which to have been obtained is not reasonably expected to have a Material Adverse Effect on the Company and Holder Representative;its subsidiaries taken as a whole (or, were such effect applied to Parent and its subsidiaries giving effect to the Merger, is not reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries (including the Surviving Corporation) taken as a whole).
(f) The shares All authorizations, consents or approvals of Acquiror Common Stock any third parties (other than those specified in Section 7.3(e)) identified in the Parent Disclosure Schedule required for Parent to be issued in connection with consummate the Merger and the other transactions contemplated hereby shall have been approved obtained, except for listing such authorizations, consents or approvals, the failure of which to have been made or obtained is not reasonably expected to have a Material Adverse Effect on NASDAQParent and its subsidiaries taken as a whole (or, subject were such effect applied to official notice from NASDAQ of such issuance;Parent and its subsidiaries giving effect to the Merger, is not reasonably expected to have a Material Adverse Effect on Parent and its subsidiaries (including the Surviving Corporation) taken as a whole).
(g) The Nominee Director designated pursuant to Section 7.8 Company shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after received an opinion, dated the Closing Date;, from Xxxxxxxx & Xxxxxxxx, LLP, counsel to Parent, in the form reasonably acceptable to the Company and its legal counsel regarding the due authorization of Parent and Merger Sub entering and performing this Agreement and the Merger, enforceability of this Agreement and the Merger, and no conflicts with the certificate of incorporation or bylaws of Parent or Merger Sub.
(h) Acquiror Parent will have a minimum of one million five hundred thousand dollars ($1,500,000) in cash on hand.
(i) Parent will have executed and/or assumed employment agreements with those executive officers and employees of the Company and its subsidiaries identified in Section 6.11(d) of the Company Disclosure Schedule, as provided in Section 6.11(d) of this Agreement.
(j) Parent shall have made all necessary received a Lock-Up Agreement executed by each Company Insider and appropriate arrangements with Parent Insider.
(k) Parent's stockholders shall have elected the Trustee to have all Director Nominees and approved each of the funds contained in Proposals.
(l) All consents or agreements of holders of the Trust Account disbursed Convertible Notes shall have been obtained by the Company to Acquiror immediately prior give effect to the Closingterms and conditions of Section 2.3.
(m) All consents, waivers, terminations and all such funds released from the Trust Account other actions referred to in Section 6.21 shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedhave been obtained and/or taken as provided therein.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror and Merger Sub contained in Sections Section 5.1, Section 5.2, 5.3, 5.9, Section 5.3(a) and Section 5.14 (other than the “Acquiror Fundamental Representations”first sentence of Section 5.14(a)) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which that speak as of an earlier date, which representations and warranties shall be true in all material respects at and as of such date, (ii) the representations and warranties of Acquiror and Merger Sub contained in the first sentence of Section 5.14(a) shall be true and correct in all respects other than de minimis inaccuracies as of the Closing Date, except with respect to such representations and warranties that speak as of an earlier date, which representations and warranties shall be true and correct in all material respects other than de minimis inaccuracies at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (iiiii) each of the representations other representation and warranties warranty of Acquiror and Merger Sub contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to of an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase in this clause (iii), (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreementa material adverse effect on Acquiror;
(b) Each of the Acquiror shall have complied in all material respects with its covenants of Acquiror and agreements required to be performed as of or prior to the Closing shall have been performed in all material respectsClosing;
(c) Acquiror The Domestication shall have been completed as provided in Section 7.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Company; and
(d) Since the date of this Agreement through the Closing Date, there The Available Acquiror Cash shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other be no less than the Company and Holder Representative;
(f) The shares of Minimum Available Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedAmount.
Appears in 1 contract
Samples: Merger Agreement (One)
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger Transactions is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror and Merger Sub contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (other than the representations and warranties of Acquiror contained in Section 5.13 (Capitalization)) (without giving effect to any materiality qualification therein) shall be true and correct in all material respectsrespects as of the Closing Date, as if made anew at and as of that time (except for Sections 5.9 to the extent such representations and 5.14warranties expressly relate to an earlier date, which all and in such case, shall be true and correct on and as of such earlier date).
(b) The representations and warranties of Acquiror and Merger Sub contained in all but Section 5.13 (Capitalization) shall be true and correct other than de minimis respectsinaccuracies, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;.
(bc) Each of the covenants of Acquiror and Merger Sub to be performed as of or prior to the Closing shall have been performed in all material respects;.
(cd) The Acquiror A&R Certificate of Incorporation, substantially in the form attached hereto as Exhibit E-1, shall have been filed with the Secretary of State of the State of Delaware and Acquiror shall have adopted the Acquiror A&R Bylaws, substantially in the form attached hereto as Exhibit E-2.
(e) Acquiror shall have executed and delivered the Registration Rights Agreement.
(f) Acquiror shall have executed and delivered the Stockholders’ Agreement.
(g) Each of the covenants of each Sponsor required under such Sponsor’s Sponsor Agreement to be performed as of or prior to the Closing shall have been performed in all material respects.
(h) The Acquiror Common Stock comprising part of the Merger Consideration to be issued pursuant to this Agreement and the Acquiror Common Stock underlying the Exchanged Options and the Exchanged Warrants shall have been approved for listing on an Approved Stock Exchange, subject only to official notice of issuance thereof.
(i) The Available Closing Date Cash shall be equal to or in excess of $150,000,000.00.
(j) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a9.03(a), Section 9.03(b), Section 9.03(c) and Section 9.3(b9.03(h) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction (or, to the extent legally permissible, waiver) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each Parent shall have performed in all material respects all of its obligations hereunder required to be performed by it as of or prior to the Closing Date, (ii) (A) the representations and warranties of Acquiror contained Parent and Merger Subsidiary set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement which are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew so qualified at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and at and as of the Closing Date as though made at and as of the Closing Date and (iiB) each of the representations and warranties of Acquiror contained Parent and Merger Subsidiary set forth in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror which are not qualified by a “Parent Material Adverse Effect or any similar Effect” qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such datethe date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for, in each case, (x) inaccuracies or omissions that for such failures to be true and correct as would not, individually or in the aggregate, reasonably be expected to have an Acquiror a Parent Material Adverse Effect Effect; provided, however, that, with respect to clauses (A) and (yB) changes after hereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (A) or (B), as applicable), only as of such date of this Agreement which are contemplated or expressly permitted by this Agreementperiod;
(b) Each the Company shall have received an opinion of Wachtell, Lipton, Xxxxx & Xxxx (or such other counsel reasonably acceptable to the Company), on the basis of representations and assumptions set forth or referred to in such opinion, dated as of the covenants of Acquiror to be performed as of or prior Closing Date, to the Closing effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code. In rendering such opinion, such counsel shall have been performed in all material respects;be entitled to rely upon representations of officers of Parent, the Company or others reasonably requested by counsel; and
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since since the date of this Agreement through the Closing DateAgreement, there shall not have been any Acquiror event, occurrence, development or state of circumstances which, individually or in the aggregate, would be reasonably likely to have a Parent Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Company of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror contained the Buyer and Merger Sub set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties Article IV hereof shall be true and correct in all material respects at as of the Closing Date as though made on and as of the Closing Date (except to the extent such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties are made on and as of Acquiror contained a specified date, in this Agreement other than which case the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating same shall continue on the Closing Date to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that timespecified date), except with respect to such representations and warranties which speak as the extent that the failure to an earlier date, which representations and warranties shall be so true and correct at will not materially delay or materially impede the consummation of the Merger or the performance by the Buyer and as Merger Sub of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of their obligations under this Agreement which are or the transactions contemplated or expressly permitted by this Agreementhereby (including payment of the Merger Consideration);
(b) Each of the The Buyer and Merger Sub shall have performed and complied in all material respects with all covenants of Acquiror required to be performed as of or complied with by them under this Agreement on or prior to the Closing shall have been performed in all material respectsClosing;
(c) Acquiror No Order or preliminary or permanent injunction issued by any court of competent jurisdiction or other Governmental Authority or other legal restraint or prohibition preventing or rendering illegal the consummation of the transactions contemplated by this Agreement shall be in effect, and no Proceeding shall have been commenced by any Governmental Authority or any Person who is not a party hereto or an Affiliate thereof for the purpose of obtaining any such Order or injunction or seeking material damages in connection with the transactions contemplated hereby or seeking to restrain, prohibit or limit the exercise of full rights of ownership or operation by the Buyer of all or any material portion of the Company;
(d) The Company shall have obtained the Company Stockholder Approval; and
(e) Prior to or at the Closing, the Buyer shall have delivered the following closing documents in form and substance reasonably acceptable to the Company Company:
(i) a certificate signed by of an authorized officer of Acquirorthe Buyer, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, effect that the conditions specified in Section 9.3(a8.2(a) and Section 9.3(b8.2(b) have been fulfilled;satisfied
(dii) Since the date of this Agreement through the Preliminary Closing DateStatement, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;Buyer; and
(fiii) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQEscrow Agreement, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with duly executed by the DGCL Buyer and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedEscrow Agent.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger Mergers is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror contained in Sections 5.1first sentence of Section 5.12(a) shall be true and correct in all but de minimis respects as of the date of this Agreement, 5.2, 5.3, 5.9, 5.14 (the “ii) Acquiror Fundamental Representations”Representations (other than the first sentence of Section 5.12(a)) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date), except for changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAgreement or the Ancillary Agreements, and (iiiii) each of the representations and warranties of Acquiror contained in this Agreement (other than the Acquiror Fundamental Representations Section 5.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date), except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an a material adverse effect on the Acquiror Material Adverse Effect or the ability of Acquiror to enter into and (y) changes after the date of this Agreement which are contemplated or expressly permitted by perform its obligations under this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.3(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within thirty (30) days after written notice from the Company (or if earlier, 5 Business Days prior to the Agreement End Date);
(c) (i) The amount of cash available in the Trust Account following the Acquiror shall have delivered Shareholders’ Meeting, after deducting the amount required to satisfy the Company a certificate signed Acquiror Share Redemption Amount and taking into account the payment of any deferred underwriting commissions being held in the Trust Account and any Unpaid Acquiror Transaction Expenses (but prior to payment of any other Transaction Expenses, as contemplated by an officer of AcquirorSection 11.6), dated plus (ii) the PIPE Investment Amount actually received by Acquiror prior to or substantially concurrently with the Closing Date, certifying that, to (the knowledge sum of (i) and belief of such officer(ii), the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;“Available Acquiror Cash”), is equal to or greater than $450,000,000; and
(d) Since All of the date directors of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than those Persons identified as the Company and Holder Representative;
(f) The shares initial directors of Acquiror Common Stock to be issued in connection with after the Merger shall have been approved for listing on NASDAQEffective Time, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL provisions of Section 2.6 and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(hSection 7.6) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all resigned or otherwise been removed effective as of the funds contained in the Trust Account disbursed to Acquiror immediately or prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedEffective Time.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is Mergers are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, Agreement or the Ancillary Agreements; and (ii) each of the representations and warranties of Acquiror and Merger Subs contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementEffect;
(b) Each each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.3(b), a covenant of Acquiror shall only be deemed to have not been performed if Acquiror has failed to cure within twenty (20) days after notice (or if earlier, the Agreement Deadline);
(c) there shall not have occurred an Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since Material Adverse Effect between the date of this Agreement through and the date of the Closing Date, there shall not have been any the impact of which continues to be a Acquiror Material Adverse Effect;; and
(ed) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account Cash Amount shall be available equal to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedor greater than $250,000,000.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect a material adverse effect on Acquiror’s ability to consummate the transactions contemplated by this Agreement and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAgreement or the Ancillary Agreements;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror The Domestication shall have been completed as provided in Section 2.1 and each of (i) time-stamped copies of the certificate of domestication related to the Domestication and the Pubco Charter, each filed with the Secretary of State of Delaware and (ii) a certificate of de-registration from the Cayman Registrar in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledCompany;
(di) Since The amount of cash available in the date Trust Account following the Acquiror Shareholders’ Meeting (after deducting the amount required to satisfy the Acquiror Share Redemption Amount and payment of this Agreement through (x) any deferred underwriting commissions being held in the Trust Account and (y) any Company Transaction Expenses or Acquiror Transaction Expenses, as contemplated by Section 11.6) plus (ii) the PIPE Investment Amount actually received by Acquiror prior to or substantially concurrently with the Closing Date(the sum of (i) and (ii), there shall not have been any the “Available Acquiror Material Adverse Effect;Cash”), is equal to or greater than $1,500,000,000; and
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares aggregate dollar value of Acquiror Common Stock Class A Ordinary Shares that (i) are elected to be issued in connection with redeemed by the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected holders thereof in accordance with the DGCL procedures and by the Acquiror Governing Documents to serve on deadline set forth in the Acquiror Board effective the first Business Day after the Closing Date;
Proxy Statement/Registration Statement and (hii) Acquiror is obligated to redeem pursuant to its Governing Documents, shall not have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedexceeded $500,000,000.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate the First Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14Section 5.9, which all shall be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director directors designated pursuant to Section 7.8 7.9 shall have been elected appointed in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective as of the first Business Day after the Closing Date;First Effective Time; and
(hg) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment in respect of all or a portion of the Aggregate Cash Consideration payment obligations set forth in Section 7.4 and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is transactions contemplated hereby shall be further subject to the satisfaction fulfillment of the following additional conditions, any one or more unless waived by such parties pursuant to SECTION 10.4 of which may be waived in writing by the Companythis Agreement:
(a) (i) Each of the All representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror Buyer contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date as if though made anew at and as of that time, such date (except with respect to such for representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and that are made as of such a specific date, except for, ). The Buyer shall have performed and complied in each case, (x) inaccuracies or omissions that would not, individually or all Material respects with all covenants and agreements contained in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated required to be performed and complied with by it at or expressly permitted by this Agreement;prior to the Closing.
(b) Each of All documents required to have been executed and delivered to the covenants of Acquiror to be performed as of Company at or prior to the Closing shall have been performed in all material respects;so executed and delivered, whether or not such documents have been or will be executed and delivered by the other parties contemplated thereby.
(c) Acquiror The Company shall have received from The Orr Group, a letter, dated not more than five Business Days prior to xxe Proxy Statement, that the Merger Consideration is fair, from a financial point of view, to the holders of the Company's Shares.
(d) The Company shall have received an opinion of Robinson, Bradshaw & Hinson, P.A., counsel to the Buyer, dated as of xxx Xxxsixx Xxxx, in xxxx and substance reasonably acceptable to the Company.
(e) As of the Closing Date, the Company shall have received the following documents with respect to the Buyer:
(i) a certificate of its corporate existence issued by the jurisdiction of its incorporation as of a recent date and a certificate of existence or authority as a foreign corporation issued as of a recent date by each of the jurisdictions in which it is qualified to do business as a foreign corporation;
(ii) a true and complete copy of its articles of incorporation and all amendments thereto, certified by the jurisdiction of its incorporation as of a recent date;
(iii) a true and complete copy of its bylaws, certified by its Secretary or an Assistant Secretary;
(iv) a certificate from its Secretary or an Assistant Secretary certifying that its articles of incorporation have not been amended since the date of the certificate described in subsection (i) above and that nothing has occurred since such date that would adversely affect its existence;
(v) a true and complete copy of the resolutions of its board of directors and shareholders authorizing the execution, delivery and performance of this Agreement, and all instruments and documents to be delivered in connection herewith, and the transactions contemplated hereby, certified by its Secretary or an Assistant Secretary; and
(vi) a certificate from its Secretary or an Assistant Secretary certifying the incumbency and signatures of its officers who will execute documents at the Closing or who have executed this Agreement.
(f) The Exchange Agent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated as of the Closing Date, certifying that, to the knowledge effect that the Exchange Agent has received from the Buyer appropriate instructions and belief authorization for the Exchange Agent to issue a sufficient number of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Buyer Stock to be issued in connection with the Merger shall have been approved exchange for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior Company Shares and to the Closing, and all such funds released effect that the Exchange Agent has received the cash portion of the Merger Consideration from the Trust Account shall be available Buyer and appropriate instructions and authorization to Acquiror for payment of the Aggregate Cash deliver such cash Merger Consideration and the payment of Acquiror’s fees and expenses incurred in connection with as required by this Agreement and the transactions herein contemplatedAgreement.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is Mergers are subject to the satisfaction (or waiver by the Company) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained Parent and Merger Sub set forth in Sections 5.14.1 (excluding Section 4.1(d)), 5.24.2, 5.34.3(b) (but only clause (i) thereof), 5.94.4, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement 4.18 and 4.20 shall be true and correct accurate in all material respects, respects (except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case inaccuracies) both when made and as of the Closing Date, Date as if made anew at and as of such date (other than those representations and warranties that time, except address matters only as of a particular date or only with respect to a specific period of time which representations and warranties need only be true and accurate as of such date or with respect to such period), (ii) the representations and warranties which speak of Parent and Merger Sub set forth in Section 4.6(b) shall be true and accurate in all respects both when made and as of the Closing Date as if made at and as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to an earlier datea specific period of time, which representations and warranties need only be so true and accurate as of such date or with respect to such period) and (iii) all other representations and warranties of Parent, Merger Sub and the Investment Adviser set forth in Article IV shall be true and correct accurate in all material respects (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein) both when made and as of the Closing Date as if made at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the other than those representations and warranties that address matters only as of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications a particular date or only with respect to a specific period of time which representations and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall warranties need only be true and correct accurate as of the Closing Date, as if made anew at and as of that time, except such date or with respect to such period) except, in the case of this clause (iii), where the failure of such representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that accurate would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Parent Material Adverse Effect;
(eb) The Escrow Agreement each of Parent, Merger Sub and the Investment Adviser shall have been duly executed by performed in all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have material respects all of the funds contained in respective obligations hereunder required to be performed by Parent, Merger Sub or the Trust Account disbursed to Acquiror immediately Investment Adviser, as the case may be, at or prior to the Closing;
(c) since the date of this Agreement, there shall not have occurred and all such funds released from be continuing any Parent Material Adverse Effect;
(d) the Trust Account Company shall be available to Acquiror for payment have received a certificate signed by an executive officer of Parent, dated as of the Aggregate Cash Consideration Closing Date, to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied; and
(e) The Company shall have received the payment written opinion of Acquiror’s fees Proskauer Rose LLP, or another nationally recognized Tax counsel reasonably satisfactory to Parent (which may include outside counsel to Parent), dated as of the Closing Date, to the effect that the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering the opinion described in this Section 6.3(e), the Tax counsel rendering such opinion may require and expenses incurred rely upon (and may incorporate by reference) reasonable and customary representations and covenants, including those contained in connection with this Agreement certificates of officers of the Company and the transactions herein contemplatedParent.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Representations shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAgreement or the Ancillary Agreements, (ii) the representations and warranties of Acquiror contained in Section 5.11 and Section 5.13 shall be true and correct other than de minimis inaccuracies as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct other than de minimis inaccuracies at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, and (iiiii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations and the representations and warranties of Acquiror set forth in clause (ii) above (disregarding any qualifications and exceptions contained therein relating to materiality, materiality and material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect a material adverse effect; provided, that for purposes of this Section 9.3(a) only, the representations and (y) changes after warranties set forth in Section 5.11 shall be true and correct solely as of the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.3(b), a covenant of Acquiror shall only be deemed to have not been performed if the Acquiror has materially breached such covenant and failed to cure within thirty (30) days’ after notice (or if earlier, the Agreement End Date);
(c) Acquiror The Domestication shall have been completed as provided in Section 7.6, and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledCompany;
(d) Since The Available Acquiror Cash shall be no less than the date of this Agreement through the Closing Date, there shall not have been any Minimum Available Acquiror Material Adverse EffectCash Amount;
(e) The Escrow Agreement Other than those persons identified as continuing directors on Section 2.6(b) of the Company Disclosure Letter, all members of the board of directors of Acquiror and all executive officers of Acquiror shall have been executed written resignations effective as of the Effective Time; and
(f) All parties to each of the Ancillary Agreements (other than the Company) shall have delivered, or caused to be delivered, to the Company copies of each of the Ancillary Agreements duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedparties.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate fulfill its obligations under this Agreement, including without limitation the Merger is obligations set forth in Section 2.1 hereof, shall be subject to the satisfaction or waiver prior to the Closing of the following additional conditions, any one or more of which provided that the condition set forth at paragraph (e) below may not be waived in writing by without the Companyprior written consent of the Purchasers:
(a) (i) Each of the representations and warranties of Acquiror the Purchasers contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date as if made anew at on the Closing Date, and as the Company shall have received a certificate signed by each Purchaser who is an individual and by a duly authorized officer of that time, except with respect each other Purchaser to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;foregoing effect.
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror Purchaser shall have delivered to the Company $500,000 per Unit (subject to pro rata adjustment in the case of any Fractional Unit) for each of the Units to be issued and sold by the Company and purchased by the Purchaser pursuant to this Agreement, as set forth on Exhibit A hereto, such amount to be payable (i) by wire transfer of immediately available funds to an account with a certificate signed bank designated by an officer the Company, by notice to each of Acquiror, dated the Purchasers to be provided no later than two Business Days prior to the Closing Date, certifying that, or (ii) a federal (same day) funds check payable to the knowledge and belief order of the Company.
(c) No party to this Agreement (other than the Company) shall be in material breach of this Agreement unless such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) breach shall have been fulfilled;waived in writing by each of the other parties to this Agreement.
(d) Since The Company shall have received such other certificates, opinions, documents and instruments related to the date transactions contemplated hereby as may have been reasonably required by the Company and are customary for transactions of this Agreement through type, and all corporate and other proceedings, and all documents, instruments and other legal matters in connection with the Closing Datetransactions contemplated by this Agreement, there shall not have been any Acquiror Material Adverse Effect;be reasonably satisfactory in form and substance to the Company and its counsel.
(e) The Escrow Agreement Company shall have been duly executed by all parties other than received, in form and substance reasonably satisfactory to the Company, an opinion, addressed to it and dated the Closing Date of Mayer, Brown & Platt, counsel for the Company and Holder Representative;
(fthe Baxx, xo xxx xffexx xxat there is "substantial authority" within the meaning of Treasury Regulation 1.6662-4(d) The shares of Acquiror Common Stock to be issued in connection with support the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all conclusion that consummation of the funds contained transactions contemplated by Section 2.1 hereof will not result in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment a change of ownership of the Aggregate Cash Consideration and Company for purposes of Section 382 of the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCode.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is transactions contemplated hereby shall be further subject to the satisfaction fulfillment of the following additional conditions, any one or more of which may be unless waived in writing by the Companyparties pursuant to Section 10.4 of this Agreement:
(a) (i) Each of the All representations and warranties of Acquiror the Parent and the Buyer contained in Sections 5.1this Agreement that are qualified as to Materiality or Material Adverse Effect shall be true and correct in all respects, 5.2, 5.3, 5.9, 5.14 (and all other representations and warranties of the “Acquiror Fundamental Representations”) of Parent and the Buyer set forth in this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis Material respects, in each case as of the Closing Date, Date as if though made anew at and as of that time, such date (except with respect to such for representations and warranties which speak that are made as to an earlier of a specific date, which representations ). Each of the Parent and warranties the Buyer shall be true have performed and correct complied in all material Material respects at with all covenants and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror agreements contained in this Agreement other than required to be performed and complied with by it at or prior to the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;Closing.
(b) Each of All documents required to have been executed and delivered by the covenants of Acquiror Parent and the Buyer to be performed as of the Company at or prior to the Closing shall have been performed in all material respects;so executed and delivered, whether or not such documents have been or will be executed and delivered by the other parties contemplated thereby.
(c) Acquiror The Company shall have received from Sandler X’Xxxxx + Partners, LP an opinion to the effect that, as of a date within three (3) Business Days prior to the execution of this Agreement, the Merger Consideration is fair, from a financial point of view, to the holders of Company Shares.
(d) The Company shall have received an opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., counsel to the Parent and the Buyer, dated as of the Closing Date, reasonably satisfactory to the Company in form and substance, concerning matters relating to the Parent and the Buyer.
(e) The Company shall have received an opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., counsel to the Company, dated as of the Closing Date, to the effect that the Merger will qualify as a reorganization within the meaning of Section 368 of the Code. The issuance of such opinion shall be conditioned on the receipt by such counsel of representation letters from the Company, the Parent and the Buyer, in each case, in form and substance reasonably satisfactory to Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P. The specific provisions of each such representation letter shall be in form and substance reasonably satisfactory to such counsel, and each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect.
(f) As of the Closing Date, the Company shall have received the following documents with respect to the Buyer:
(i) a true and complete copy of its articles of incorporation and all amendments thereto, certified by the North Carolina Secretary of State as of a recent date;
(ii) a true and complete copy of its bylaws, certified by its Secretary or an Assistant Secretary;
(iii) a certificate from its Secretary or an Assistant Secretary certifying that (A) its articles of incorporation or charter have not been amended since the date of the certificate described in subsection (ii) above, and that nothing has occurred since the date of issuance of the certificate of existence specified in subsection (i) above that would adversely affect its existence, and (B) it has complied with the conditions set forth in this Section 8.2 as may be reasonably required by the Company, including without limitation a certificate as to the matters set forth in Section 8.2(a);
(iv) a certificate of its corporate existence issued by the North Carolina Secretary of State as of a recent date;
(v) a true and complete copy of the resolutions of its board of directors and shareholder authorizing the execution, delivery and performance of this Agreement, and all instruments and documents to be delivered in connection herewith, and the transactions contemplated hereby, certified by its Secretary or an Assistant Secretary; and
(vi) a certificate from its Secretary or an Assistant Secretary certifying the incumbency and signatures of its officers who will execute documents at the Closing or who have executed this Agreement.
(g) As of the Closing Date, the Company shall have received the following documents with respect to the Parent:
(i) a true and complete copy of its articles of incorporation and all amendments thereto, certified by the North Carolina Secretary of State as of a recent date;
(ii) a true and complete copy of its bylaws, certified by its Secretary or an Assistant Secretary;
(iii) a certificate from its Secretary or an Assistant Secretary certifying that (A) its articles of incorporation or charter have not been amended since the date of the certificate described in subsection (ii) above, and that nothing has occurred since the date of issuance of the certificate of existence specified in subsection (i) above that would adversely affect its existence, and (B) it has complied with the conditions set forth in this Section 8.2 as may be reasonably required by the Company, including without limitation a certificate as to the matters set forth in Section 8.2(a);
(iv) a certificate of its corporate existence issued by the North Carolina Secretary of State as of a recent date;
(v) a certificate from its Secretary or an Assistant Secretary certifying the incumbency and signatures of its officers who will execute documents at the Closing or who have executed this Agreement;
(vi) a true and complete copy of the resolutions of its board of directors authorizing the execution, delivery and performance of this Agreement, and all instruments and documents to be delivered in connection herewith, and the transactions contemplated hereby, certified by its Secretary or an Assistant Secretary; and
(vii) a certificate of the Federal Reserve Bank.
(h) There shall have been (i) no Material Adverse Effect with respect to the Parent or the Buyer and (ii) no event, occurrence or circumstance that, individually or taken together with any other events, occurrences, or circumstances, has had a Material adverse impact on the ability of the Parent or the Buyer to perform its obligations under this Agreement or to consummate the Merger or the other transactions contemplated by this Agreement.
(i) The Exchange Agent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated as of the Closing Date, certifying thatto the effect that the Exchange Agent has received from the Parent appropriate instructions and authorization for the Exchange Agent to issue the Merger Consideration, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;extent required by this Agreement.
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(ej) The Escrow Agreement Parent shall have been duly executed by all parties other than arranged for the issuance on the Effective Date of the New Parent Warrants. to each Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of Warrantholder that terminates such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected Company Warrantholder’s Company Warrants in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedSection 6.1(j).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger Mergers is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each The representations and warranties of Acquiror contained in Section 5.12 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement and (ii) each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (other than Section 5.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of Agreement or the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAncillary Agreements;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.3(b), a covenant of Acquiror or Merger Sub, as applicable, shall only be deemed to have not been performed if Acquiror or Merger Sub, as applicable, has materially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, the Agreement End Date);
(c) Acquiror The Domestication shall have been completed as provided in Section 7.8 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Company; and
(d) Since the date of this Agreement through the Closing Date, there The Available Acquiror Cash shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other be no less than the Company and Holder Representative;
(f) The shares of Minimum Available Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedAmount.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. III)
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction (or, to the extent legally permissible, waiver) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each Acquirer shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror Acquirer contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date with the same force and effect as if made anew at on the Closing Date (provided that any such representation and warranty made as of that timea specific date shall be true and correct as of such specific date), except with respect to for such inaccuracies that individually or in the aggregate do not have a Material Adverse Effect on Acquirer as of the Closing Date and except for changes contemplated by this Agreement (it being understood that, for purposes of determining the accuracy of such representations and warranties which speak as to an earlier datewarranties, which all "Material Adverse Effect" qualifications and other qualifications based on the word "material" or similar phrases contained in such representations and warranties shall be true disregarded, and correct at and as any update of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually modification to the Acquirer Disclosure Letter made or in the aggregate, reasonably be expected proposed to have an Acquiror Material Adverse Effect and (y) changes been made after the date execution of this Agreement which are contemplated or expressly permitted shall be disregarded), and (iii) the Company shall have received a certificate signed by this Agreement;the chief executive officer of Acquirer to the foregoing effect; and
(b) Each the Company shall have received an opinion of the covenants of Acquiror to be performed as of or prior Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, in form and substance reasonably satisfactory to the Closing shall have been performed Company, on the basis of certain facts, representations and assumptions set forth in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquirorsuch opinion, dated the Closing Date, certifying thatEffective Time, to the knowledge effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code and belief that each of the Company, Merger Subsidiary and Acquirer will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such officeropinion, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date such counsel shall be entitled to rely upon certain representations of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than officers of the Company and Holder Representative;
(fAcquirer reasonably requested by counsel. If the opinion referred to in this Section 8.3(b) The shares of Acquiror Common Stock is not delivered, such condition shall be deemed to be issued in connection with satisfied if the Merger Acquirer shall have been approved for listing on NASDAQ, subject to official notice received an opinion from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL Pillsbury Madison & Sutro LLP or another law firm selected by Acquirer and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior reasonably acceptable to the ClosingCompany. The Company will cooperate in obtaining such opinion, including, without limitation, making (and all such funds released requesting from the Trust Account shall be available affiliates) appropriate representations with respect to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedrelevant matters.
Appears in 1 contract
Samples: Merger Agreement (S3 Inc)
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company, in its sole discretion:
(a) (i) Each of the The representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Section 5.12 shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, Agreement and (ii) each of the representations and warranties of Acquiror contained in this Agreement (other than the Acquiror Fundamental Representations Section 5.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase of this clause (ii), (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an a material adverse effect on the ability of Acquiror Material Adverse Effect and (y) changes after the date of or Merger Sub to perform their obligations under this Agreement which are contemplated (provided, however, that none of the Precedent Transactions, including any actions, acquisitions, mergers, reorganizations and similar changes affecting the Company, Acquiror or expressly permitted any of their respective businesses or Affiliates, shall be deemed an inaccuracy or omission regarding any representation or warranty referenced in clauses (i) through (ii), and each such representation and warranty shall be deemed qualified by this Agreementthe Precedent Transactions in all respects);
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;; and
(c) Acquiror The Available Cash shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other be no less than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Minimum Available Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedAmount.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Welsbach Technology Metals Acquisition Corp.)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate consummate, or cause to be consummated, the Merger is are subject to the satisfaction of the following additional conditionsconditions at the Closing, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror Buyer and Merger Sub contained in Sections 5.1Article V (other than the representations and warranties contained in the first sentence of Section 5.1 and Section 5.2), 5.2disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 as of the date of this Agreement and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that timedate, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies for any inaccuracy or omissions omission that would not, individually or in the aggregate, not reasonably be expected to have an Acquiror a Material Adverse Effect on Buyer. Each of the representations and (y) changes after warranties contained in the first sentence of Section 5.1 and Section 5.2, disregarding all qualifications contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which are contemplated or expressly permitted by this Agreement;speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date.
(b) Each of the covenants of Acquiror Buyer and Merger Sub to be performed as of at or prior to the Closing shall have been performed in all material respects;.
(c) Acquiror Buyer shall have delivered to the Company a certificate signed by an officer of AcquirorBuyer (the “Buyer Officer’s Certificate”), dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror contained in Sections 5.1Section 5.12 shall be true and correct in all but de minimis respects as of the Closing Date, 5.2except with respect to such representations and warranties which speak as to an earlier date, 5.3which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, 5.9, 5.14 (except for changes after the “Acquiror Fundamental Representations”) date of this Agreement which are contemplated or expressly permitted by this Agreement, (ii) the Acquiror Fundamental Representations (other than Section 5.12) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, Agreement or the Ancillary Agreements and (iiiii) each of the representations and warranties of Acquiror contained in this Agreement (other than the Acquiror Fundamental Representations Representations) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct in all material respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) for changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAgreement or the Ancillary Agreements;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;; and
(c) Acquiror The Domestication shall have been completed as provided in Section 7.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCompany.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is shall be subject to the satisfaction fulfillment of the following additional conditions, any one or more of which may be conditions unless waived in writing by the Company:
(a) (i) Each The representations and warranties of the Parent Parties set forth in Article III (other than Section 3.5) that are qualified by a “Material Adverse Effect” qualification shall be true and correct as so qualified at and as of the date of this Agreement and at and as of the Closing as though made at and as of such times, (ii) the representations and warranties of Acquiror contained the Parent Parties set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 Article III (the other than Section 3.3 and Section 3.9) that are not qualified by a “Acquiror Fundamental Representations”) of this Agreement Material Adverse Effect” qualification shall be true and correct in all material respects(without giving effect to any materiality qualifications therein) at and as of the date of this Agreement and at and as of the Closing as though made at and as of such times, except for Sections 5.9 and 5.14, which all such failures to be true and correct in all but de minimis respectsas would not, in each case as of the Closing Dateaggregate, as if made anew at and as of that time, except constitute a Material Adverse Effect with respect to such Parent, (iii) the representations and warranties which speak as to an earlier date, which representations and warranties set forth in Section 3.3 shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreementand at and as of the Closing as though made at and as of such times, and (iiiv) each of the representations and warranties of Acquiror contained set forth in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications Section 3.5 and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties Section 3.9 shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which and at and as of the Closing as though made at and as of such times; provided, however, that with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are contemplated made as of a particular date or expressly permitted by this Agreement;period shall be true and correct (in the manner set forth in clause (i), (ii), (iii) or (iv) above, as applicable) only as of such date or period.
(b) Each of Parent Party shall have performed in all material respects the obligations and agreements and shall have complied in all material respects with the covenants of Acquiror to be performed as of and complied with by it under this Agreement at or prior to the Closing shall have been performed in all material respects;Closing.
(c) Acquiror Parent shall have delivered to furnished the Company with a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, Date signed on its behalf by a Chief Executive Officer or other senior officer of the general partner of Parent to the knowledge and belief of such officer, effect that the conditions specified set forth in Section 9.3(aSections 7.2(a), 7.2(b) and Section 9.3(b7.2(d) have been fulfilled;satisfied.
(d) Since the date of this Agreement through the Closing DateAgreement, there shall not have been occurred any Acquiror Events that, individually or in the aggregate, constitute a Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock Effect with respect to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedParent.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement qualified by "Material Adverse Effect on Parent" shall be true and correct in all material respects, except for Sections 5.9 as of the date of this Agreement and 5.14, which all be true as of the Closing Date as though made on and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained Parent and Acquisition set forth in this Agreement other than the Acquiror Fundamental Representations (and not qualified by "Material Adverse Effect on Parent", disregarding any all qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent that time, except with respect to such representations and warranties which speak as to an earlier of another date, in which case such representations and warranties shall be true and correct at and as of such other date), except for, in each case, (x) inaccuracies or omissions that where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, reasonably be expected to have an Acquiror a Material Adverse Effect on Parent, and (y) changes after at the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror Closing, Parent and Acquisition shall have delivered to the Company a certificate signed to that effect, executed by an officer two (2) executive officers of Acquiror, dated Parent and Acquisition; 57
(b) the Closing Date, certifying that, covenants and obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date terms of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly performed in all material respects at or before the Effective Time, and, at the Closing, Parent and Acquisition shall have delivered to the Company a certificate to that effect, executed by all parties other than the Company two (2) executive officers of Parent and Holder RepresentativeAcquisition;
(fc) The the shares of Acquiror Parent Common Stock issuable to the Company's stockholders pursuant to this Agreement and such other shares required to be issued reserved for issuance in connection with the Merger shall have been approved for listing quotation on NASDAQthe Nasdaq National Market, subject to upon official notice from NASDAQ of such issuance;
(gd) The Nominee Director designated pursuant the Company shall have received a written opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company, to the effect that (i) the Merger will constitute a reorganization within the meaning of Section 7.8 368(a) of the Code, and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn; provided, however, that if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, fails to deliver such opinion, then Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to Parent, may deliver such opinion in satisfaction of this closing condition; provided further, that any such opinion may rely on representations as such counsel reasonably deems appropriate and on typical assumptions. Parent, Acquisition, and the Company agree to provide to such counsel such representations as such counsel reasonably requests in connection with rendering such opinions; and
(e) subject to each of the disclosures in the Parent Disclosure Schedule, there shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve no Material Adverse Effect on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedParent.
Appears in 1 contract
Samples: Merger Agreement (Edwards J D & Co)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate effect the Merger is shall be subject to the satisfaction fulfillment, at or prior to the Effective Time, of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror the Parent and the Purchaser contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement that are qualified by materiality shall be true and correct in all material respects, except for Sections 5.9 respects as of the date of this Agreement and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at Date and as of that time, except with respect to such the representations and warranties which speak as to an earlier date, which representations and warranties of the Parent contained in this Agreement that are not so qualified shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except in each case to the extent any such representation or warranty expressly speaks as of an earlier specified date, in which are contemplated or expressly permitted by this Agreementcase, and (ii) as of such date), except in each case where the failure of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be so true and correct as of the Closing Date, as if made anew at and as of that time, except with respect (without giving effect to such representations and warranties which speak any qualification as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x"material," "materiality,""material adverse effect" or similar qualifications) inaccuracies or omissions that would are not, individually or in the aggregate, reasonably be expected likely to have an Acquiror Material Adverse Effect a material adverse effect on the Parent and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;Parent Subsidiaries taken as a whole.
(b) Each of The Parent and the covenants of Acquiror to be performed as of or prior to the Closing Purchaser shall have been performed have, in all material respects;, performed all covenants and agreements and complied with all conditions required by this Agreement to be performed or complied with by the Parent and the Purchaser prior to or on the Closing Date. The Parent shall deliver to Company a certificate of its Chief Executive Officer, solely in his capacity as such, as to the satisfaction of the conditions in paragraphs (a) and (b) of this Section 7.3.
(c) Acquiror Company shall have delivered received from Company's Counsel an opinion in substantially the form attached hereto as Annex VI, dated on or about the date of mailing of the Proxy Statement/Prospectus, which opinion shall be reconfirmed at the Effective Time, substantially to the Company effect that the Merger will be treated for U.S. federal income tax purposes as a certificate signed by an officer reorganization within the meaning of AcquirorSection 368(a) of the Code. In rendering such opinion, dated Company's Counsel shall be entitled to request and rely upon representations contained in certificates of officers of Parent and Company, which certificates are in substantially the Closing Dateform attached hereto as Annex III and Annex IV, certifying that, to as the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;case may be.
(d) Since The Company may not rely on the date failure of any condition set forth in this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock Article VII to be issued in connection with satisfied if such failure was caused by the Merger shall have been approved for listing on NASDAQ, subject Company's failure to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant use commercially reasonable efforts to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and consummate the transactions herein contemplatedcontemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Compass International Services Corp)
Conditions to the Obligations of the Company. The Company's obligation of to sell the Company to consummate the Merger is Securities shall be subject to the satisfaction or waiver by it of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing:
(a) (i) Each of the The representations and warranties of Acquiror Purchaser contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) Section 2.2 of this Agreement that are qualified as to materiality shall be true and correct in all material respectsaccurate, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties those not so qualified shall be true and correct accurate in all material respects at and as of such date, except for changes after the Closing Date as if made on the date hereof.
(b) Purchaser shall have performed and complied in all material respects with all agreements and conditions contained herein that are required to be performed or complied with by it on or before the Closing Date, including without limitation, payment of this Agreement the Purchase Price.
(c) Purchaser shall have received all consents, permits, approvals and other authorizations that may be required from, and made all such filings and declarations that may be required with, any person pursuant to any law, statute, regulation or rule (federal, state, local and foreign), or pursuant to any agreement, order or decree by which are Purchaser or any of its assets is bound, in connection with the transactions contemplated or expressly permitted by this Agreement, except for (i) notice requirements which may be fulfilled subsequent to the Closing Date and (ii) each consents, permits, approvals, authorizations, filings and declarations the failure to obtain or to undertake which will not adversely affect Purchaser's ability to perform its obligations under this Agreement or any agreement executed in accordance herewith. 17
(d) The Company shall have received a certificate, dated the Closing Date and signed by the President of the representations general partner of Purchaser, certifying that the conditions in Sections 3.2(a), (b) and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exceptionc) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at are satisfied on and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;.
(be) Each of the covenants of Acquiror to be performed as of or prior to the Closing The Company shall have been performed in all material respects;
received an opinion (c) Acquiror shall have delivered reasonably satisfactory to the Company a certificate signed by an officer of Acquirorand its counsel), dated the Closing Date, certifying that, from outside counsel to Purchaser in substantially the knowledge and belief form of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedExhibit C hereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Franchise Finance Corp of America)
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Section 5.12 shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, Agreement and (ii) each of the representations and warranties of Acquiror contained in this Agreement (other than the Acquiror Fundamental Representations Section 5.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x1) inaccuracies or omissions that would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected a material adverse effect on the ability of Acquiror or Merger Sub to have an Acquiror Material Adverse Effect perform its obligations under this Agreement and (y2) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAgreement or the Ancillary Agreements;
(b) Each of the covenants of Acquiror and Merger Sub to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror The Domestication shall have been completed as provided in Section 7.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Company; and
(d) Since All of the date directors of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than those Persons identified as the Company and Holder Representative;
(f) The shares initial directors of Acquiror Common Stock to be issued in connection with after the Merger shall have been approved for listing on NASDAQEffective Time, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL provisions of Section 2.6 and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(hSection 7.6) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all resigned or otherwise been removed effective as of the funds contained in the Trust Account disbursed to Acquiror immediately or prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedEffective Time.
Appears in 1 contract
Samples: Merger Agreement (Growth for Good Acquisition Corp)
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction (or, to the extent legally permissible, waiver) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each Parent shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror Parent contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date with the same force and effect as if made anew at on the Closing Date (provided that any such representation and warranty made as of that timea specific date shall be true and correct as of such specific date), except with respect to for such inaccuracies that individually or in the aggregate do not have a Material Adverse Effect on Parent as of the Closing Date and except for changes contemplated by this Agreement (it being understood that, for purposes of determining the accuracy of such representations and warranties which speak as to an earlier datewarranties, which all "Material Adverse Effect" qualifications and other qualifications based on the word "material" or similar phrases contained in such representations and warranties shall be true disregarded, and correct at and as any update of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually modification to the Parent Disclosure Letter made or in the aggregate, reasonably be expected proposed to have an Acquiror Material Adverse Effect and (y) changes been made after the date execution of this Agreement which are contemplated or expressly permitted shall be disregarded), and (iii) the Company shall have received a certificate signed by this Agreement;the chief executive officer of Parent to the foregoing effect; and
(b) Each the Company shall have received an opinion of the covenants of Acquiror to be performed as of or prior Snelx & Xilmxx, X.L.P. in form and substance reasonably satisfactory to the Closing shall have been performed Company, on the basis of certain facts, representations and assumptions set forth in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquirorsuch opinion, dated the Closing Date, certifying thatEffective Time, to the knowledge effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of section 368(a) of the Code and belief that each of the Company, Merger Subsidiary and Parent will be a party to the reorganization within the meaning of section 368(b) 37 42 of the Code. In rendering such officeropinion, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date such counsel shall be entitled to rely upon certain representations of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than officers of the Company and Holder Representative;
(fParent reasonably requested by counsel. If the opinion referred to in this Section 7.3(b) The shares of Acquiror Common Stock is not delivered, such condition shall be deemed to be issued in connection with satisfied if the Merger Parent shall have been approved for listing on NASDAQ, subject to official notice received an opinion from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL Pillsbury Winthrop LLP or another law firm selected by Parent and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior reasonably acceptable to the ClosingCompany. The Company will cooperate in obtaining such opinion, including, without limitation, making (and all such funds released requesting from the Trust Account shall be available affiliates) appropriate representations with respect to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedrelevant matters.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement shall be subject to the satisfaction fulfillment or the Company’s waiver, at or prior to the Closing, of each of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror Parent and Merger Sub contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Article IV shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of both the Effective Date and the Closing Date, Date with the same effect as if though made anew at and as of that time, such date (except with respect to such those representations and warranties which speak that address matters only as to an earlier of a specified date, which representations and warranties shall be true and correct in all material respects at and as of such that specified date), except for changes after where the date failure of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the such representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct would not have a material adverse effect on Parent’s and Merger Sub’s ability to consummate the transactions contemplated hereby.
(b) Parent and Merger Sub shall have performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Agreements to be performed or complied with by Parent and Merger Sub prior to or on the Closing Date.
(c) No Governmental Order shall be in effect which restrains, hinders or prohibits or threatens to restrain, hinder or prohibit the consummation of the transactions contemplated by this Agreement; and there shall not have been threatened, nor shall there be pending, any Action by a Person or before any Governmental Authority which is reasonably likely to restrain, hinder, prohibit, delay or challenge the validity of any of the transactions contemplated by this Agreement.
(d) Parent and Merger Sub shall have delivered to the Company evidence satisfactory to the Company that the transfer of the Closing Shares to each Company Stockholder has been initiated as of the Closing Date, as if made anew at and as of that time, except with respect in addition to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior duly executed counterparts to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge Ancillary Agreements and belief of such officer, the conditions specified other documents and deliverables set forth in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;2.12.
(e) The Escrow Agreement Board of Directors of Parent (the “Parent’s Board”) shall have been duly executed by all parties other than appointed Sxxxx Xxxxxx to serve as a member of the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQParent’s Board, subject to official notice from NASDAQ Governmental Authority approval required by Law, until the next meeting of such issuance;
(g) The Nominee Director designated pursuant Parent’s stockholders and agree to Section 7.8 shall have been elected in accordance with nominate Mx. Xxxxxx for reelection at the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all next shareholders’ meeting of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of AcquirorParent’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedstockholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Harvest Health & Recreation Inc.)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is shall be subject to the satisfaction or waiver (where permissible), at or prior to the Closing, of each of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror the Purchaser and the Merger Subsidiary contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (without giving effect to any materiality qualifications or limitations therein) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respectscorrect, in each case as of the Closing Date, Date as if though made anew at on and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect (i) for such failures to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at that have not had a material adverse effect on the ability of the Purchaser and the Merger Subsidiary to consummate timely the transactions contemplated by this Agreement or a material adverse effect on the rights of the Company or the Stockholders hereunder; (ii) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date, except for, subject to the qualifications in each case, (xi) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect above; and (yiii) for changes after expressly permitted as contemplated by the date terms of this Agreement which are contemplated or expressly permitted by this Agreement;.
(b) Each of the covenants of Acquiror contained in this Agreement to be performed as of complied with by the Purchaser and Merger Subsidiary on or prior to before the Closing shall have been performed complied with in all material respects;
(c) Acquiror the Company shall have delivered received a certificate from the Purchaser and Merger Subsidiary certifying as to the Company a certificate matters described in (a) and (b) above signed by an a duly authorized officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledthereof;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed approved by all parties other than the Company and Holder Representative;
(f) The shares affirmative vote of Acquiror the holders of in excess of 95% of the Common Stock to be issued and Preferred Stock (collectively and in connection with the Merger shall have been approved for listing on NASDAQseparate classes, subject to official notice from NASDAQ of such issuance;
(gas applicable) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve Company’s certificate of incorporation on or before five hours following the Acquiror Board effective the first Business Day after the Closing Dateexecution and delivery of this Agreement;
(he) Acquiror the Partnership ORRI shall have been distributed to the Stockholders and Optionholders of the Company;
(f) the Purchaser shall have provided evidence of its ability to pay in immediately available funds an amount equal to the Total Merger Consideration and shall have made all necessary and appropriate arrangements with arrangement, reasonably satisfactory to the Trustee to have all holders of the funds contained Bank Debt, to pay or assume all such obligations in full as of the Trust Account disbursed to Acquiror immediately prior Effective Time; and
(g) adjustments to the ClosingTotal Merger Consideration sought by Purchaser for Defects pursuant to Article XI shall not, and all such funds released from the Trust Account shall be available to Acquiror for payment after application of the Aggregate Cash Consideration and Deductible, exceed the payment sum of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedThirty-Five Million Dollars ($35,000,000).
Appears in 1 contract
Samples: Merger Agreement (Pogo Producing Co)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate effect the Merger is shall be subject to the satisfaction fulfillment at or before the Effective Time of the following additional conditions, any one or more of which (except for the conditions set forth in Section 5.02(b) and (d)) may be waived in writing by the Company:
(a) (i) Each of the The representations and warranties of Acquiror Buyer and Buyer Subsidiary contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) Section 3.02 of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at date of this Agreement and as of that timeimmediately before the Effective Time, except with respect to such those representations and warranties which that speak as to of an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations . Each of Buyer and warranties Buyer Subsidiary shall be true have performed and correct at complied in all material respects with the agreements and as of such date, except for, obligations contained in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror required to be performed as of or prior to and complied with by it immediately before the Closing Effective Time; and the Company shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company received a certificate signed by an executive officer of Acquiror, dated the Closing Date, certifying that, each of Buyer and Buyer Subsidiary to the knowledge and belief effects set forth in this Section 5.02(a).
(b) This Agreement shall have been approved at the meeting of such officer, the conditions specified shareholders of the Company referred to in Section 9.3(a4.02 by the vote required by the Minnesota Act and the Company's Articles of Incorporation.
(c) and Section 9.3(b) have been fulfilled;There shall not be in effect any provision of applicable law prohibiting the consummation of the Merger or any injunction, writ, judgment, preliminary restraining order or other order or decree of any nature issued by a court or governmental agency of competent jurisdiction directing that any of the transactions provided for herein not be consummated as so provided.
(d) Since All applicable waiting periods (and any extension thereof) under the date of this Agreement through the Closing Date, there HSR Act shall not have expired or otherwise been any Acquiror Material Adverse Effect;terminated.
(e) The Escrow Agreement shall have been duly executed All actions by all parties other than or in respect of or filings with any governmental body, agency, official or authority required to permit the Company and Holder Representative;
(f) The shares consummation of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedor obtained.
Appears in 1 contract
Samples: Merger Agreement (Buffets Inc)
Conditions to the Obligations of the Company. The obligation of the Company to consummate effect the Merger is transactions contemplated hereby shall be further subject to the satisfaction fulfillment of the following additional conditions, any one or more unless waived by such parties pursuant to SECTION 11.4 of which may be waived in writing by the Companythis Agreement:
(a) (i) Each of the All representations and warranties of Acquiror the Buyer contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case Material respects as of the Closing Date, Date as if though made anew at and as of that time, such date (except with respect to such for representations and warranties which speak that are made as to an earlier of a specific date, which representations ). The Buyer shall have performed and warranties shall be true and correct complied in all material Material respects at with all covenants and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror agreements contained in this Agreement other than required to be performed and complied with by it at or prior to the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;Closing.
(b) Each of All documents required to have been executed and delivered by the covenants of Acquiror Buyer to be performed as of the Company at or prior to the Closing shall have been performed in all material respects;so executed and delivered, whether or not such documents have been or will be executed and delivered by the other parties contemplated thereby.
(c) Acquiror The Company shall have received from Trident Securities, a division of McDonald Investments Inc., a letter, dated not more than five Business Days prior to the Proxy Statement, that the Merger Consideration is fair, from a financial point of view, to the holders of the Company's Shares.
(d) The Company shall have received an opinion of Robixxxx, Xxadxxxx & Xinsxx, X.A., counsel to the Buyer, dated as of the Closing Date, in form and substance reasonably acceptable to the Company.
(e) As of the Closing Date, the Company shall have received the following documents with respect to the Buyer:
(i) a true and complete copy of its articles of incorporation and all amendments thereto, certified by the jurisdiction of its incorporation as of a recent date;
(ii) a true and complete copy of its bylaws, certified by its Secretary or an Assistant Secretary;
(iii) a certificate from its Secretary or an Assistant Secretary certifying that its articles of incorporation have not been amended since the date of the certificate described in subsection (i) above and that nothing has occurred since such date that would adversely affect its existence;
(iv) a true and complete copy of the resolutions of its board of directors and shareholders authorizing the execution, delivery and performance of this Agreement, and all instruments and documents to be delivered in connection herewith, and the transactions contemplated hereby, certified by its Secretary or an Assistant Secretary; and
(v) a certificate from its Secretary or an Assistant Secretary certifying the incumbency and signatures of its officers who will execute documents at the Closing or who have executed this Agreement.
(f) The Exchange Agent shall have delivered to the Company a certificate signed by an officer of Acquirorcertificate, dated as of the Closing Date, certifying that, to the knowledge effect that the Exchange Agent has received from the Buyer appropriate instructions and belief authorization for the Exchange Agent to issue a sufficient number of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Buyer Stock to be issued in connection with the Merger shall have been approved exchange for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in Company Shares and the Trust Account disbursed to Acquiror immediately prior Company Bank Shares and to the Closing, and all such funds released effect that the Exchange Agent has received the Total Cash Merger Consideration from the Trust Account shall be available Buyer and appropriate instructions and authorization to Acquiror for payment of deliver the Aggregate Total Cash Merger Consideration and the payment of Acquiror’s fees and expenses incurred in connection with as required by this Agreement and the transactions herein contemplatedAgreement.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Company Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each The representations and warranties of Acquiror contained in Section 6.12 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement (including by the Company the granting of any consent under Section 8.5) and (ii) each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (other than Section 6.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of Agreement or the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAncillary Agreements;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respectsrespects (other than Section 9.2(b)); provided, that for purposes of this Section 10.3(b) a covenant of Acquiror, Merger Sub, Blocker Sub or the Blocker Merger Subs, as applicable, shall only be deemed to have not been performed if Acquiror, Merger Sub, Blocker Sub or any of the Blocker Merger Subs, as applicable, has materially breached such material covenant and failed to cure within twenty (20) days after written notice (or if earlier, the Agreement End Date);
(c) Acquiror The Domestication shall have been completed as provided in Section 8.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Company; and
(d) Since the date of this Agreement through the Closing Date, there The Remaining Trust Amount shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other be equal to or greater than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Minimum Remaining Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedAmount.
Appears in 1 contract
Samples: Merger Agreement (Aspirational Consumer Lifestyle Corp.)
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an a material adverse effect on Acquiror Material Adverse Effect and (y) changes after or Acquiror’s ability to consummate the date of this Agreement which are transactions contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) As of immediately following the Effective Time, the Board of Directors of Acquiror shall consist of the number of directors, and be otherwise constituted in accordance with Section 7.6; provided, that the Company shall have delivered performed the covenants of the Company to be performed prior to the Company a certificate signed by an officer effectiveness of Acquiror, dated the Closing Date, certifying that, Registration Statement pursuant to the knowledge and belief of such officer, the conditions specified proviso in Section 9.3(a) and Section 9.3(b) have been fulfilled7.6(a);
(d) Since the date of this Agreement through the Closing Date, there The Domestication shall not have been any Acquiror Material Adverse Effectcompleted as provided in Section 7.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company;
(e) The Escrow Agreement shall have been duly executed by all parties other As of immediately following the Effective Time, no single stockholder of Acquiror (excluding any such stockholder of Acquiror that holds Company Capital Stock as of immediately prior to the Effective Time), will own greater than nine and nine-tenths percent (9.9%) of the Company then-issued and Holder Representative;outstanding shares of Domesticated Acquiror Common Stock; and
(f) The shares of Available Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account Cash shall be available to no less than the Minimum Available Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedAmount.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. V)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(ai) Parent and MergerSub each shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the time of the filing of the Certificate of Merger, (ii) (iA) Each of the representations and warranties of Acquiror Parent contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement that are qualified by reference to a Parent Material Adverse Effect shall be true and correct in all material respects, except for Sections 5.9 when made 48 54 and 5.14, which all be true at and correct in all but de minimis respects, in each case as of the Closing Datetime of filing the Certificate of Merger, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such time (except to the extent any such representation or warranty expressly speaks as of an earlier date, except for changes after the date of this Agreement in which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) case it shall be true and correct as of the Closing Date, as if such date) and (B) all other representations and warranties of Parent shall have been true and correct when made anew and at and as of that time, the time of the filing of the Certificate of Merger as if made at and as of such time (except with respect to the extent any such representations and warranties which speak representation or warranty expressly speaks as to of an earlier date, in which representations and warranties case it shall be true and correct at and as of such date), except for, in each case, (x) for such inaccuracies or omissions that would notas are not reasonably likely, individually or in the aggregate, reasonably be expected to have an Acquiror a Parent Material Adverse Effect Effect, and (yiii) changes after the date Company shall have received a certificate signed by the Chief Executive Officer or Chief Financial Officer of this Agreement which are contemplated or expressly permitted by this AgreementParent to the foregoing effect;
(b) Each The Company shall have received an opinion of Dewex Xxxxxxxxxx XXX in form and substance reasonably satisfactory to the Company, on the basis of certain facts, representations and assumptions set forth in such opinion, dated as of the covenants date of Acquiror to be performed as the filing of or prior the Certificate of Merger, to the Closing effect that the Merger will be treated for federal income tax purposes as a 368 Reorganization. In rendering such opinion, such counsel shall have been performed be entitled to rely upon customary representations of officers of the Company and Parent in all material respects;form and substance reasonably satisfactory to such counsel and other reasonable assumptions set forth therein; and
(c) Acquiror The parties shall have delivered obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Sections 4.03 and 5.03 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) (assuming the Effective Time had occurred) would be reasonably likely to the Company have a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Parent Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate consummate, or cause to be consummated, the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each The representations and warranties of Acquiror contained in Section 5.12 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement and (ii) each of the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (other than Section 5.12) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect or any similar qualification or exception) shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of Agreement or the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this AgreementAncillary Agreements;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror The Domestication shall have been completed as provided in Section 7.7 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;Company; and
(d) Since the date The amount of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained cash available in the Trust Account disbursed to following the Acquiror immediately prior to Shareholder Meeting, plus the Closing, and all such funds released from PIPE Investment Amount actually received by the Trust Account Acquiror substantially concurrently with the Closing shall be available equal to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedor greater than $100,000,000.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction of the following additional conditions, the imposition of which is solely for the benefit of the Company and any one or more of which may be expressly waived in writing by the Company, in its sole discretion, except as otherwise required by law:
(a) (i) Each of the The representations and warranties of Acquiror Parent and Merger Sub contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement herein shall be have been true and correct in all material respectsrespects when made, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty had by its terms been made as of a specific date, except for changes after the date in which case such representation and warranty shall have been true and correct in all material respects as of such specific date). For purposes of this Agreement which are contemplated or expressly permitted by this AgreementSection 6.03(a), and (ii) each of the requirement that the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications Parent and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) Merger Sub shall be true and correct as of the Closing Date, as if made anew at and as of that time, except in "all material respects" is not intended to establish a different or higher materiality standard with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies any representation or omissions warranty that would not, individually is already qualified by a materiality or in the aggregate, reasonably be expected to have an Acquiror a Material Adverse Effect standard by the terms thereof. The Company shall have received a certificate of Parent dated the Closing Date and (y) changes after signed by the date trustee of Parent certifying to the fulfillment of this Agreement which are contemplated or expressly permitted by this Agreementcondition;
(b) Each of the Parent and Merger Sub shall have performed in all material respects all obligations and agreements and complied in all material respects with all covenants of Acquiror and conditions contained in this Agreement to be performed as of and complied with by it at or prior to the Closing Date, and the Company shall have been performed in all material respectsreceived a certificate of Parent dated the Closing Date and signed by an officer of Parent certifying the fulfillment of this condition;
(c) Acquiror The Paying Agent shall have delivered received to be held in accordance with the Paying Agent Agreement (i) at the direction of Group, as proceeds of the initial drawdown under the Credit Agreement, an amount equal to 80% of the Funds and (ii) from Parent, as proceeds of the Equity Financing, an amount equal to 20% of the Funds;
(d) Parent shall have entered into a binding commitment (subject to the Effective Time occurring) to purchase the SERP Policy; and
(e) The Company shall have received from the Company's Financial Advisor a certificate signed by an officer of Acquirorwritten opinion, dated the Closing Date, certifying thatconfirming, to the knowledge and belief reasonable satisfaction of such officerthe Company, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedPreliminary Solvency Opinion.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate effect the Merger is Closing shall be subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each The representations of the representations and warranties of Acquiror contained Investors in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”Section 1.1(b) of this Agreement shall be true and correct (A) in all material respectsthe case of the Registration Statement and any post-effective amendments thereto, except for Sections 5.9 at the respective times referred to in Section 1.1(c), and 5.14in the case of the Prospectus, which all be true as of its date, and correct in all but de minimis respects, in each case (B) as of the Closing Date, except that in the case of this clause (B) all references to any time period or date referred to in Section 1.1(b) shall be deemed to be references to the Closing Date. All other representations and warranties of the Investors contained in this Agreement (i) that are qualified by materiality, material adverse effect or words of similar import, shall be true and correct as if made anew at of the date hereof and as of the Closing (except to the extent that time, except with respect to any such representations representation and warranties which speak warranty expressly speaks as to of an earlier date, in which representations case such representation and warranties warranty shall be true and correct as of such earlier date) and (ii) that are not qualified by materiality, material adverse effect or words of similar import, shall be true and correct in all material respects at as of the date hereof and as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, except for changes after the date of this Agreement in which are contemplated or expressly permitted by this Agreement, case such representation and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) warranty shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and in all material respects as of such earlier date).
(b) The Investors shall have performed all of their obligations hereunder required to be performed by them in all material respects, except forand complied with the covenants hereunder applicable to them in all material respects, in each caseat or prior to the Closing.
(c) Since the date of this Agreement, (x) inaccuracies there shall not have been, and be continuing, any material adverse effect or omissions any effect that would notwould, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect materially and (y) changes after adversely affect the date of Investors’ ability to perform their obligations under this Agreement which are or consummate the transactions contemplated or expressly permitted by this Agreement;hereby on a timely basis.
(bd) Each of the covenants of Acquiror to be performed as of or prior to the Closing The Company shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company received a certificate certificate, signed by an officer of Acquiror, dated the Closing Dateeach Investor, certifying that, as to the knowledge and belief of such officer, the conditions specified matters set forth in Section 9.3(a5.2(a), (b) and Section 9.3(b) have been fulfilled;
(d) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedc).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one conditions on or more of which may be waived in writing by before the CompanyClosing Date:
(a) (i) Each of the representations and warranties of Acquiror contained set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement Article VI shall be true and correct in all material respects, at and as of the date of this Agreement and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties (except for Sections 5.9 that those representations and 5.14, which all warranties that are made as of a specific date need only be true and correct in all but de minimis respects, in each case respects as of the Closing Date, as if made anew at and as of that timesuch date), except with respect to where the failure of any such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would nothas not had, individually or in the aggregate, reasonably be expected to have an Acquiror a Material Adverse Effect and (y) changes after on the date ability of this Agreement which are Parent or the Merger Subsidiary to consummate the transactions contemplated or expressly permitted by this Agreementhereby;
(b) Each of Parent and the Merger Subsidiary shall have each performed in all material respects all the covenants of Acquiror and agreements required to be performed by it under this Agreement prior to the Closing;
(c) No waiting period under the HSR Act relating to the transactions contemplated by this Agreement shall have been required;
(d) No Proceeding before any Governmental Agency shall be pending which, if successful for the Governmental Agency, would result in an Order that would prevent the carrying out of this Agreement or any of the transactions contemplated hereby, or cause such transactions to be rescinded;
(e) Parent shall have delivered to Company an opinion of Xxxxxxxxxx & Xxxxx, LLP, legal counsel to Parent, in a form reasonably acceptable to Company counsel legal counsel and dated the Closing Date, substantially to the effect that:
(i) The incorporation, existence, and good standing of Parent are as stated in this Agreement and, assuming the effectiveness of the Merger and tender of the Company Stock by the holders thereof, the shares of Parent Common Stock to be issued to and received by the Company Shareholders pursuant to this Agreement will be duly and validly authorized, fully paid and non-assessable; all outstanding shares of Parent Common Stock are duly and validly authorized and issued, fully paid and non-assessable and have not been issued in violation of any preemptive right of shareholders; and, to the knowledge of such counsel, there is no existing option, warrant, right, call, subscription or other agreement or commitment obligating Parent to issue or sell, or to purchase or redeem any shares of its capital stock other than as stated in this Agreement or its disclosure schedules.
(ii) Parent and Merger Subsidiary have full corporate power and authority to execute, deliver and perform this Agreement, and this Agreement has been duly authorized, executed and delivered by Parent and Merger Subsidiary, and (assuming the due and valid authorization, execution and delivery by the Company) constitutes the legal, valid and binding agreement of Parent and of Merger Subsidiary.
(iii) To the knowledge of such counsel, there are no actions, suits or proceedings, pending or threatened against Parent by any Governmental Authority which seek to restrain, prohibit or invalidate the transaction contemplated by this Agreement.
(iv) The execution and performance by Parent of this Agreement will not violate the Certificate of Incorporation, as amended, or Bylaws of Parent.
(v) To the knowledge of such counsel, no consent, approval, authorization or order of any court or Governmental Authority which has not been obtained is required on behalf of Parent or Merger Subsidiary for consummation of the transactions contemplated by this Agreement.
(vi) The issuance of the Parent Merger Stock by Parent is exempt from the registration provisions of Section 5 of the 1933 Act. In rendering its opinion, counsel may rely as to factual matters on certificates of public officials and officers or employees of Parent, provided that copies of such opinions and certificates shall be delivered with such opinion, and provided further that in the case of any such reliance, counsel shall state that it believes that it is justified in relying on such opinions and certificates for such matters.
(f) On or prior to the Closing shall have been performed in all material respects;
(c) Acquiror Date, Parent shall have delivered to the Company a each of the following:
(i) certificate signed by an officer from the Chief Executive Officer of AcquirorParent, dated as of the Closing Date, certifying that, to stating that the knowledge and belief of such officer, the conditions applicable preconditions specified in Section 9.3(a3.1(a) and Section 9.3(b(b) hereof have been fulfilledsatisfied, the provisions of Section 3.3 applicable to Parent have been satisfied, and certifying such other matters reasonably requested by the Company;
(dii) certified copies of the resolutions duly adopted by the board of directors and shareholders of Parent and the Merger Subsidiary authorizing the execution, delivery and performance of this Agreement and the consummation of all transactions contemplated hereby; and
(iii) copies of any consents, approvals, releases from and filings with, Governmental Agencies required in order to effect the transactions contemplated by this Agreement which Parent is responsible to obtain pursuant to the terms of this Agreement;
(g) The Company shall have received the executed Fairness Opinion.
(h) Since the date of this Agreement through the Closing DateAgreement, there shall not have been occurred any Acquiror Material Adverse Effect;
(e) The Escrow Agreement Effect with respect to Parent or Merger Subsidiary, and no event shall have been duly occurred or circumstance shall exist that, in combination with any other events or circumstances, could reasonably be expected to have a Material Adverse Effect on Parent or Merger Subsidiary; and (i) All certificates, instruments and other documents required to effect the transactions contemplated hereby reasonably requested by the Company shall be reasonably satisfactory in form and substance to the Company. Any condition specified in this Section 3.1 except (m) may be waived by the Company; provided, however, that no such waiver will be effective unless it is set forth in a writing executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedCompany.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate hereunder on each Purchase Date (including the Merger is Initial Purchase Date) shall be subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the All representations and warranties of Acquiror the Seller contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 on such Purchase Date and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties Seller shall be true and correct in compliance in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;its respective obligations hereunder.
(b) Each of the covenants of Acquiror to be performed as of On or prior to the Closing such Purchase Date, there shall have been performed made and there shall be in full force and effect all material respects;filings (including, without limitation, UCC filings), recordings and/or registrations, and there shall have been given, or taken, any notice or any other similar action as may be necessary or, to the extent requested by the Company, advisable, in order to establish, perfect, protect and preserve the right, title and interest, remedies, powers, privileges, liens and security interests of the Company and the Collateral Agent granted pursuant to this Agreement or the Security Agreement, as the case may be, and the Company and the Collateral Agent shall have received evidence satisfactory to them of all of the foregoing.
(c) Acquiror All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement shall have delivered be satisfactory in form and substance to the Company a certificate signed by an officer and the Company shall have received from the Seller copies of Acquirorall documents (including, dated the Closing Datewithout limitation, certifying that, records of corporate proceedings) relevant to the knowledge and belief of such officer, transactions herein contemplated as the conditions specified in Section 9.3(a) and Section 9.3(b) Company may have been fulfilled;reasonably requested.
(d) Since The Company shall be permitted by the date of this Liquidity Agreement through to purchase Receivables on such Purchase Date and shall have cash in the Closing Date, there Collection Account or shall not have been any Acquiror Material Adverse Effect;obtained Loans or issued Commercial Paper in an amount sufficient to fund such purchase.
(e) The Escrow Agreement Seller shall have been duly executed by be in compliance in all parties other than the Company and Holder Representative;material respects with its obligations hereunder.
(f) The shares No Company Event of Acquiror Common Stock to be issued Default described in connection with clause (d) or (e) of Section 8.01 of the Merger Liquidity Agreement shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;occurred and be continuing.
(g) The Nominee Director designated pursuant to Section 7.8 No Seller Event of Default shall have been elected in accordance with the DGCL occurred and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;be continuing.
(h) Acquiror The Wind-Down Date shall not have occurred.
(i) No Collection Agent Event of Default as defined in Section 5.05 hereof shall have made all necessary and appropriate arrangements with the Trustee to have all occurred.
(j) Each of the funds contained Parent Credit Agreement and the Intercreditor Agreement shall be in full force and effect and no event of default under the Trust Account disbursed to Acquiror immediately prior to the Closing, Parent Credit Agreement shall have occurred and all such funds released from the Trust Account be continuing.
(k) The Guaranty Letter of Credit shall be in full force and effect and there shall be available to Acquiror for payment drawing thereunder an amount that is not less than 2% of the Aggregate Cash Consideration Outstanding Principal Receivables after giving effect to the purchase to be made on such Purchase Date.
(l) The Seller and GECC shall have received Support Agreements executed by the chief executive officer, treasurer and data processing manager of the Parent and the payment president and data processing manager of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedSeller.
Appears in 1 contract
Samples: Purchase and Administration Agreement (Baldwin Piano & Organ Co /De/)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction (or waiver by the Company) of the following additional further conditions, any one or more of which may be waived in writing by the Company:
(a) (i) Each of the representations and warranties of Acquiror contained Parent and Sub shall be true and accurate (except for those representations and warranties that address matters only as of a particular date which need only be true and accurate as of such date) as of the Effective Time as if made at and as of such time, except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “material adverse effect” set forth therein), does not have, individually or in the aggregate, a material adverse effect on Parent and its Subsidiaries taken as a whole; provided, that the representations and warranties set forth in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement 4.2 and 4.3 shall be true and correct in all material respects, except for Sections 5.9 ;
(b) each of Parent and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties Sub shall be true and correct have performed in all material respects all of the respective obligations hereunder required to be performed by Parent or Sub, as the case may be, at and as of such date, except for changes after or prior to the Effective Time;
(c) since the date of this Agreement which are contemplated or expressly permitted by this Agreement, and (ii) each of the representations and warranties of Acquiror contained in this Agreement other than the Acquiror Fundamental Representations (disregarding there shall not have occurred any qualifications and exceptions contained therein relating event, change or effect having, or which could be reasonably likely to materiality, material adverse effect and Acquiror Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would nothave, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect a material adverse effect on Parent and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed its Subsidiaries, taken as of or prior to the Closing shall have been performed in all material respects;
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilledwhole;
(d) Since the date Company shall have received the opinion of this Agreement through Gxxx Xxxx, counsel to the Closing DateCompany, there based upon representations of Parent, Sub and the Company, and normal assumptions, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of section 368(a) of the Code, which opinion shall not have been withdrawn or modified in any Acquiror Material Adverse Effectmaterial respect. The issuance of such opinion shall be conditioned on receipt by Gxxx Xxxx of representation letters from each of Parent and Company as contemplated in Section 5.15 of this Agreement. Each such representation letter shall be dated on or before the date of such opinion and shall not have been withdrawn or modified in any material respect as of the Effective Time;
(e) The Escrow Agreement the Company shall have been duly executed by all parties other than received an opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, substantially in the Company form attached as Exhibit F-2 hereto and Holder Representative;otherwise reasonably satisfactory in form and substance to the Company, addressed to the Company; and
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger Parent shall have been approved for listing furnished the Company with a certificate dated the Closing Date signed on NASDAQ, subject behalf of it by the President of Parent to official notice from NASDAQ of such issuance;
the effect that the conditions set forth in Sections 6.3(a) through (gd) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedsatisfied.
Appears in 1 contract
Samples: Merger Agreement (Valicert Inc)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is transactions contemplated by this Agreement and the other Transaction Documents are subject to the satisfaction (or written waiver by the Seller), at or prior to the Closing, of the following additional conditions, any one or more of which may be waived in writing by the Company:
(ai) (iA) Each of the representations and warranties of Acquiror the Purchaser Entities contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement (other than the Purchaser Fundamental Representations and Warranties) shall be true and correct in all respects (without giving effect to any qualification as to “materiality,” “in all material respects, except for Sections 5.9 ,” “Material Adverse Effect” or words of like meaning set forth therein) on and 5.14as of the date of this Agreement and on and as of the Closing Date with the same effect as though made at and as of such date (other than such representations and warranties that expressly speak only as of a specific date or time, which all will be true and correct (without giving effect to any qualification as to “materiality,” “in all but de minimis material respects, in each case ,” “Material Adverse Effect” or words of like meaning set forth therein) as of the Closing Datesuch specified date or time, as if though made anew at on and as of that timesuch date or time in all respects), except with respect to where the failure of any such representations and warranties which speak as to an earlier datebe so true and correct, which representations would not, individually or in the aggregate, have a material adverse effect on the Purchaser’s ability to consummate the transactions contemplated by this Agreement and warranties (B) the Purchaser Fundamental Representations and Warranties shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Closing Date with the same effect as though made at and as of such datedate (other than such representations and warranties that expressly speak only as of a specific date or time, except for changes after the which will be true and correct in all material respects as of such specified date or time as though made on and as of this Agreement which are contemplated such date or expressly permitted by this Agreement, and time);
(ii) each of the representations covenants, conditions and warranties of Acquiror agreements contained in this Agreement other than required to be complied with or performed by the Acquiror Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Acquiror Material Adverse Effect Purchaser Entities on or any similar qualification or exception) shall be true and correct as of before the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have an Acquiror Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing Date shall have been complied with and performed in all material respects;
(ciii) Acquiror each Purchaser shall have delivered to the Company a certificate signed by an from its Chief Executive Officer or Chief Financial Officer (or if no such officer exists, then another legal officer or authorized signatory of Acquiror, each Purchaser) dated as of the Closing Date, Date certifying that, to the knowledge and belief of such officer, that the conditions specified in Section 9.3(aSections 4.2(c)(i) and Section 9.3(b4.2(c)(ii) have been fulfilled;satisfied; and
(div) Since the date of this Agreement through the Closing Date, there shall not have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement Purchaser shall have been duly executed by all parties other than delivered to the Company and Holder Representative;
(f) The shares the documents listed in Section 4.3(a), each of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account which shall be available to Acquiror for payment of the Aggregate Cash Consideration in full force and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplatedeffect.
Appears in 1 contract
Samples: Asset Purchase Agreement (Progress Software Corp /Ma)
Conditions to the Obligations of the Company. The obligation obligations of the Company to consummate the Merger is are subject to the satisfaction of the following additional conditions, further conditions (any one or more of which may be waived in writing whole or part by the Company:):
(a) (i) Each Parent and Merger Sub shall have performed all of their respective material obligations hereunder required to be performed by them at or prior to the representations and warranties of Acquiror contained in Sections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Sections 5.9 and 5.14, which all be true and correct in all but de minimis respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement, Effective Time; and (ii) the Company shall have received a certificate from each of Parent and Merger Sub, each signed by an executive officer of Parent or Merger Sub, as appropriate, to the foregoing effect;
(b) (i) each of the representations and warranties of Acquiror the Parent and the Merger Sub contained in this Agreement other than shall have been true and correct at the Acquiror Fundamental Representations time originally made (disregarding any qualifications as qualified by the Parent Disclosure Schedule) and exceptions contained therein relating to materiality, material adverse effect the representations and Acquiror Material Adverse Effect or any similar qualification or exception) warranties made as of the Agreement Date shall be true and correct as of the Closing Effective Time (as qualified by the Parent Disclosure Schedule delivered on the Agreement Date, as if made anew at and as of that time), except with respect to for breaches of such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would notthat, individually or in the aggregate, would not and could not reasonably be expected to have an Acquiror result in a Material Adverse Effect Effect; and (yii) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of Acquiror to be performed as of or prior to the Closing Company shall have been performed in all material respectsreceived a certificate from each of Parent and Merger Sub, each signed by an executive officer of Parent or Merger Sub, as appropriate, certifying to that effect;
(c) Acquiror no Material Adverse Effect with respect to the Parent shall have delivered occurred or been discovered by Company since the Agreement Date which could reasonably be expected to result in the Company a certificate signed by an officer of Acquiror, dated Parent being unable to consummate the Closing Merger in accordance with the terms hereof on or before the Final Termination Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled;; and
(d) Since the date of this Agreement through the Closing Date, there shall not Xxxxxxx XxXxxxxxx LLP will have been any Acquiror Material Adverse Effect;
(e) The Escrow Agreement shall have been duly executed by all parties other than the Company and Holder Representative;
(f) The shares of Acquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on NASDAQ, subject to official notice from NASDAQ of such issuance;
(g) The Nominee Director designated pursuant to Section 7.8 shall have been elected in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective the first Business Day after the Closing Date;
(h) Acquiror shall have made all necessary and appropriate arrangements with the Trustee to have all of the funds contained a legal opinion in the Trust Account disbursed to Acquiror immediately prior to the Closing, and all such funds released from the Trust Account shall be available to Acquiror for payment of the Aggregate Cash Consideration and the payment of Acquiror’s fees and expenses incurred in connection with this Agreement and the transactions herein contemplated.form attached hereto as Exhibit F.
Appears in 1 contract
Samples: Merger Agreement (Cytyc Corp)