Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions: (a) each of Parent and Merger Sub 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; (b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect; (c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
Appears in 3 contracts
Samples: Merger Agreement (Schwab Charles Corp), Merger Agreement (Td Ameritrade Holding Corp), Merger Agreement
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed in all material respects all of its obligations hereunder required to be performed by it fulfillment at or prior to the Effective Time;Time of each of the following conditions, any or all of which may be waived in whole or in part by the Company to the extent permitted by applicable Law:
(ba) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent contained and Merger Sub set forth in Section 5.05(athe first sentence of Section 4.01 (Organization and Qualification) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing in Section 4.02 (or, if such representations and warranties are given as of another specific date, at and as of such date); (iiAuthority For This Agreement) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement both when made and at and as of the Closing Date, as if made at and as of such time (except to the Closing (or, if such representations and warranties are given extent expressly made as of another specific an earlier date, at and in which case as of such date); (iii) the . The representations and warranties of Parent contained and Merger Sub set forth herein (other than those listed in Section 5.09(a)(iithe preceding sentence) shall be true and correct in all respects at and as of the date of this Agreement (without giving effect to any materiality or material adverse effect qualifications contained therein) both when made and at and as of the Closing Date, as if made at and as of such time (except to the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and extent expressly made as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific an earlier date, at and in which case as of such date), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected likely to havehave or result in, individually or in the aggregate, a Parent Material Adverse Effect;.
(b) Parent shall have performed or complied in all material respects with all agreements contained herein required to be performed or complied with by it prior to or at the time of the Closing, except where the failure to so perform or comply, in the aggregate, would not be reasonably likely to have a Parent Material Adverse Effect.
(c) Parent shall have delivered to the Company a certificate, dated the date of the Closing, signed by the Chief Executive Officer or Chief Financial Officer of Parent, certifying as to the fulfillment of the conditions specified in Section 7.03(a) and 7.03(b).
Appears in 3 contracts
Samples: Merger Agreement (Square D Co), Merger Agreement (Juno Lighting Inc), Merger Agreement (Fremont Partners Lp)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (orsatisfaction, or waiver at or prior to the extent permitted by Applicable LawEffective Time, waiver by the Company) of the following further conditions:
(a) (i) each of Parent and Merger Sub Subsidiary shall have performed in all material respects all of its covenants and other obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent contained in Section 5.05(a) Sections 5.01 and 5.02 shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true in all material respects only as of such date); (iiitime) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (ivB) the other representations and warranties of Parent contained in this Agreement, Agreement or in any certificate or other writing delivered by Parent pursuant hereto (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Effect qualifications contained therein) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such datetime), exceptwith, in the case of this clause (ivB) only, where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on Parent; and (iii) the Company shall have received a certificate signed by an executive officer of Parent to the foregoing effect;
(b) the Company shall have received an opinion of Holland & Knight LLP 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 Effective Time, 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 and that each of Parent, Merger Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, such counsel shall be entitled to rely upon representations of officers of Parent and the Company substantially in the form of Exhibits B and C hereto; and
(c) since the date of this Agreement, there shall not have occurred any 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 Material Adverse Effect on Parent.
Appears in 2 contracts
Samples: Merger Agreement (Switch & Data Facilities Company, Inc.), Merger Agreement (Equinix Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Integrated Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, written waiver by the Company) of the following further conditions:
(a) each of Parent and the Merger Sub Subs 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(aSections 5.5(a) and 5.5(d) shall be true and correctcorrect in all respects, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereofSection 5.1(a) and Section 5.1(b), Section 5.02Section 5.2, Section 5.04(iSection 5.4(a), Section 5.21, Section 5.22 Section 5.5(b) and Section 5.23 5.5(c) and Section 5.16 and shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiSection 5.10(ii) and Section 5.17 shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the ClosingClosing (or, if such representations and warranties are given as of another specific date, at and as of such date); and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
Appears in 2 contracts
Samples: Merger Agreement (WillScot Mobile Mini Holdings Corp.), Merger Agreement (WillScot Mobile Mini Holdings Corp.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed in all material respects all of its obligations hereunder required to be performed by it fulfillment at or prior to the Effective Time;Time of each of the following conditions, any or all of which may be waived in whole or in part by the Company to the extent permitted by applicable Laws:
(ba) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent contained and Merger Sub (i) set forth in Section 5.05(a) Section 4.3 shall be true and correct, subject only to de minimis exceptions, at and correct in all respects as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at on and as of such date); date and time, (ii) the representations and warranties of Parent contained set forth in Section 5.01 (other than the third sentence thereofSection 4.2(a), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 Section 4.2(b) and Section 5.23 Section 4.22 shall be true and correct in all material but de minimis respects at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at on and as of such date and time (except for representations and warranties made as of a specified date); , only as of the specified date) and (iii) the representations and warranties of Parent contained set forth in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; (other than those Sections specifically identified in clause (i) and (iv) ii)), to the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to extent qualified by materiality or Parent Material Adverse Effect, shall be true and correct at and, to the extent not so qualified, shall be true and correct in all material respects, in each case as of the date of this Agreement and at as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as if made at of a specified date, which need be true and correct, or true and correct in all material respects, as the case may be, only as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such specified date), except, .
(b) Parent shall have performed or complied in all material respects with all covenants and agreements contained herein required to be performed or complied with by it prior to or at the case time of the Closing.
(c) Since the date of this clause (iv) onlyAgreement, where the failure of such representations and warranties to be true and correct there shall not have been any effect, change, event or occurrence that has not had and or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;.
(d) Parent shall have delivered to the Company a certificate, dated the date of the Closing, signed by a designated director of Parent and a designated director of Merger Sub, certifying as to the fulfillment of the conditions specified in Section 7.3(a), Section 7.3(b) and Section 7.3(c).
Appears in 2 contracts
Samples: Merger Agreement (E-House (China) Holdings LTD), Merger Agreement (China Real Estate Information Corp)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent Parent, Bidco and each Merger Sub shall have performed performed, in all material respects respects, all of its obligations hereunder required to be performed by it at or prior to the First Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(athe first and last sentences of Section 5.01, Section 5.02, Section 5.04(a) and Section 5.18 shall be true and correct, subject only to de minimis exceptions, correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Section 5.05(a) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuracies; (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiSection 5.10(b) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, Article V (disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, ) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(c) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.03(a) and Section 9.03(b); and
(d) the Company shall have received the opinion of Wachtell, Lipton, Xxxxx & Xxxx, or, if Wachtell, Lipton, Xxxxx & Xxxx is unable or unwilling to provide such opinion, Freshfields Bruckhaus Xxxxxxxx US LLP (“Company Tax Counsel”), dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, (i) the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) the Mergers will not result in gain recognition to the stockholders of the Company pursuant to Section 367(a)(1) of the Code (assuming that in the case of any such stockholder who would be treated as a “five-percent transferee shareholder” of Parent within the meaning of Treasury Regulations Section 1.367(a)-3(c)(5)(ii), such stockholder enters into a five-year gain recognition agreement in the form provided in Treasury Regulations Section 1.367(a)-8(c) and complies with the requirements of that agreement and Treasury Regulations Section 1.367(a)-8 for avoiding the recognition of gain). In rendering such opinion, Company Tax Counsel may rely on the Parent Tax Certificate, the Company Tax Certificate and such other information provided to it by Parent and/or the Company for purposes of rendering such opinion.
Appears in 2 contracts
Samples: Merger Agreement (Alexion Pharmaceuticals, Inc.), Merger Agreement (Alexion Pharmaceuticals, Inc.)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction or (or, to the extent permitted by Applicable Law, ) waiver by at or prior to the Company) Effective Time of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained and Merger Subsidiary (other than the representations set forth in Section Section 5.01, Section 5.02, Section 5.05(a), Section 5.17, Section 5.18 and Section 5.20) set forth herein shall be true and correct, subject only correct in all respects (without giving effect to de minimis exceptions, at and any limitation indicated by the words or phrases “Parent Material Adverse Effect,” “in all material respects,” “material,” or “materially” in such representations or warranties) as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing such time (or, if such except those representations and warranties are given that expressly address matters only as of another specific a particular earlier date, at and in which case as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such that date), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;, (ii) the representations and warranties of the Company contained in Section 5.05(a) shall be true and correct (other than de minimis inaccuracies) as of the date of this Agreement and at and as of the Closing Date as if made at and as of such time (except those representations and warranties that expressly address matters only as of a particular earlier date, in which case as of that date) and (iii) the representations and warranties of Parent and Merger Subsidiary set forth in Section 5.01, Section 5.02, Section 5.17,
Appears in 2 contracts
Samples: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Ultratech Inc)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are Mergers is subject to the satisfaction (orsatisfaction, at or prior to the extent permitted by Applicable LawClosing, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of the Parent contained Parties set forth in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of on the date of this Agreement hereof and at and as of on the Closing Date as if made at on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of the Closing (or, if such representations and warranties are given as of another specific an earlier date, at in which case such representation and warranty shall have been true and correct as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such earlier date), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had and (disregarding all qualifications or limitations as to “materiality” or words of similar import) would not reasonably be expected to havenot, individually or in the aggregate, prevent, materially delay or materially impair any Parent Party’s ability to consummate the Transactions;
(b) the Parent Parties shall each have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date;
(c) the Company shall have received at the Closing a certificate signed on behalf of Parent Material Adverse Effectby the Chief Executive Officer or the Chief Financial Officer of Parent certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied;
(d) the Excluded Asset Closings shall have occurred; and
(e) the Closing Dividend shall have been paid in full. For the avoidance of doubt, the Closing Dividend to be received prior to the Closing by holders of the Company Common Stock and OP Units is in addition to (and shall not reduce) their respective rights to receive the Merger Consideration in full hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Wheeler Real Estate Investment Trust, Inc.), Merger Agreement (Cedar Realty Trust, Inc.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate effect the Merger are also subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) Company on or prior to the Closing Date of the following further conditions:
(a) each (i) The representations and warranties of Parent and Merger Sub contained in Section 3.1 (Organization and Qualification) and Section 3.2(a) (Authority) shall be true and correct in all material respects (except for representations and warranties in any such sections qualified as to materiality or a Parent Material Adverse Effect, which shall be true and correct in all respects) as of the date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case, they shall be true and correct in all material respects or in all respects, as the case may be, as of such earlier date) and (ii) the representations and warranties of Parent and Merger Sub in this Agreement other than those specified in the preceding clause (i) shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case, they shall be true and correct as of such earlier date), except for any such failures of any of such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) that would not, individually or in the aggregate, have a Parent Material Adverse Effect;
(b) Each of Parent and Merger Sub shall have performed in all material respects all of its material covenants, agreements and obligations hereunder required to be performed by it under this Agreement at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;Closing Date; and
(c) (i) the representations and warranties The Company shall have received a certificate signed on behalf of Parent contained by an executive officer of Parent to the effect that the conditions in Section 5.05(aclauses (a) shall be true and correct, subject only to de minimis exceptions, at and as of (b) above have been so satisfied; and
(d) From the date of this Agreement and at and as through the Effective Time, there shall not have occurred any events, conditions, states of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality facts or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to havedevelopments that have had, individually or in the aggregate, a Parent Material Adverse Effect;, the effects of which are continuing on the Closing Date.
Appears in 2 contracts
Samples: Merger Agreement (Skywest Inc), Merger Agreement (Expressjet Holdings Inc)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate effect the Merger are Closing is subject to the satisfaction (or, at or prior to the extent permitted by Applicable Law, waiver by the Company) Closing Date of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained Newco set forth in Section 5.05(a) this Agreement that are qualified as to materiality shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained Newco set forth in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 this Agreement that are not so qualified shall be true and correct in all material respects at and respects, in each case as of the date of this Agreement and at Closing Date, as though made on and as of the Closing as if made at and as of Date, except to the Closing (or, if such representations and warranties are given as of extent the representation or warranty is expressly limited by its terms to another specific date, at and the Company shall have received a certificate (which certificate may be qualified by knowledge to the same extent as of such date); (iii) the representations and warranties of Parent Newco contained in Section 5.09(a)(iiherein are so qualified) shall be true and correct in all respects at and as signed on behalf of Newco by an executive officer of Newco to such effect;
(b) each of the date obligations of Newco to be performed at or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Closing Date and at and as of the Closing Newco shall have delivered to the Company a certificate signed on behalf of Newco by an executive officer of Newco to such effect;
(c) each holder of shares of Company Preferred Stock issued and outstanding on the date hereof shall have entered into an agreement with the Company in the form set forth as if made at and as of Exhibit F hereto (the Closing; and "Company Preferred Stock Agreement");
(ivd) the other representations and warranties Banks shall have entered into an agreement with the Company in the form set forth in Exhibit G hereto (the "Bank Agreement");
(e) the Company shall have received the opinion of Parent contained in this AgreementXxxxxxxxxx, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse EffectXxxxxx & Xxxxxxx, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptL.L.P., in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or form set forth in the aggregate, a Parent Material Adverse Effect;Exhibit H hereto.
Appears in 2 contracts
Samples: Transaction Agreement (Harrys Farmers Market Inc), Transaction Agreement (Progressive Food Concepts Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Investment and the other transactions contemplated hereby are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditionscondition:
(ai) each of Parent and Merger Sub The Investors shall have performed in all material respects all of its their respective obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing, (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent the Investors contained in Section 5.05(aSections 6.01, 6.07 and 6.08 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct, subject only to de minimis exceptions, at and in all material respects as of the date of this Agreement hereof and at and as of the Closing as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true in all material respects only as of such date); time) and (iiB) the other representations and warranties of Parent the Investors contained in Section 5.01 this Agreement or in any certificate or other writing delivered by the Investors pursuant hereto (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 disregarding all materiality and Section 5.23 Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects at and as of the date of this Agreement hereof and at and as of the Closing as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such datetime), exceptwith, in the case of this clause (ivB) only, where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; and (iii) the Company shall have received a certificate signed by an executive officer of Saratoga to the foregoing effect;
(b) The Investors shall have obtained executed Joinder Agreements substantially in the form attached hereto as Exhibit G from each of the Permitted Transferees set forth on Schedule I hereto, each of which to be effective as of the Closing, and the Investors shall have delivered a copy of each such Joinder Agreement to the Company prior to or at the Closing; and
(c) Saratoga shall be in compliance in all material respects with its obligations under the Advisers Act as of the date of Closing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (GSC Investment Corp.), Stock Purchase Agreement (GSC Investment Corp.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate effect the Merger are also subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) Company on or prior to the Closing Date of the following further conditions:
(a) each (i) the representations and warranties of Parent and Merger Sub contained in Sections 3.1 (Organization and Qualification; Subsidiaries), 3.2 (Charter and Bylaws), 3.3 (Capital Stock) and 3.4(a) (Authority) shall be true and correct in all material respects (except for representations and warranties in any such sections qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (ii) the representations and warranties of Parent and Merger Sub in this Agreement other than those specified in the preceding clause (i) shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), in each case except where the failure of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) would not, individually or in the aggregate, have a Parent Material Adverse Effect;
(b) Each of Parent and Sub shall have performed in all material respects all of its obligations hereunder covenants required to be performed by it under this Agreement at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effectClosing Date;
(c) The Company shall have received a certificate signed on behalf of Parent by an executive officer of Parent to the effect that the conditions in clauses (a) and (b) above have been so satisfied;
(d) The Company shall have received an opinion (reasonably acceptable in form and substance to the Company) from Xxxxx Xxxxx L.L.P., dated as of the Closing Date, to the effect that for federal income tax purposes (i) the representations Merger will be treated as a reorganization within the meaning of Section 368(a) of the Code and warranties (ii) each of Parent and the Company will be a party to such reorganization within the meaning of Section 368(b) of the Code, and such opinion shall not have been withdrawn, revoked or modified. Such opinion will be based upon representations of the Parties contained in Section 5.05(athis Agreement and in the tax representation letters described in Section 5.16; and
(e) shall be true and correct, subject only to de minimis exceptions, at and as of From the date of this Agreement and at and as of through the Closing as if made at and as of Closing, there shall not have occurred any change in the Closing condition (orfinancial or otherwise), if such representations and warranties are given as of another specific dateoperations, at and as of such date); (ii) the representations and warranties business or properties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating its subsidiaries that constitutes or is reasonably likely to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, constitute a Parent Material Adverse Effect;.
Appears in 2 contracts
Samples: Merger Agreement (Pogo Producing Co), Merger Agreement (Plains Exploration & Production Co)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) and Sub shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and accurate as of the Closing as if made at and as of the Closing such time (or, if such other than those representations and warranties are given that address matters only as of another a particular date or only with respect to a specific dateperiod of time, at which representations and warranties need only be true and accurate as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereofdate or with respect to such period), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had and accurate (without giving effect to any limitation as to “materiality” or “material adverse effect” set forth therein) would not reasonably be expected to havenot, individually or in the aggregate, have a Parent Material Adverse Effect;
(b) each of Parent and Sub shall 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 or prior to the Closing;
(c) 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(a) have been satisfied; and
(d) Parent shall have delivered to the Company a certificate, in form and substance reasonably satisfactory to the Company, to the effect that, at the Effective Time, after giving effect to the Merger and 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 that 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), (ii) have unreasonably small capital with which to engage in its business or (iii) have incurred or plan to incur debts beyond its ability to pay as they become absolute and matured.
Appears in 2 contracts
Samples: Merger Agreement (Corillian Corp), Merger Agreement (Checkfree Corp \Ga\)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Companywaiver) of the following further conditions:
(a) (i) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and ; (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent contained in Section 5.05(a) and Merger Subsidiary that are qualified by reference to Parent Material Adverse Effect shall be true and correct, subject only to de minimis exceptions, correct at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than any such representations and warranties are given that by their terms address matters only at and as of another specific datespecified time, which shall be true and correct only at and as of such datetime); , (iiB) the representations and warranties of Parent and Merger Subsidiary contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Section 5.07 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than any such representations and warranties are given as of another specific date, that by their terms address matters only at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) another specified time, which shall be true and correct in all material respects only at and as of such time) and (C) all other representations and warranties of Parent and Merger Subsidiary contained in this Agreement or in any certificate or other writing delivered by Parent or Merger Subsidiary pursuant hereto shall be true and correct (disregarding all materiality qualifications contained therein) at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing; and such time (iv) the other than any such representations and warranties that by their terms address matters only as of Parent contained in this Agreementanother specified time, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, which shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, disregarding all materiality qualifications contained therein) only at and as of such datetime), exceptwith, in the case of this clause (ivC) only, where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;; and (iii) the Company shall have received a certificate signed by an executive officer of Parent to the foregoing effect; and
(b) there shall not have been instituted and remain pending any unresolved action or proceeding by any Governmental Authority seeking to make illegal, enjoin or otherwise to restrain or prohibit the consummation of the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Arthrocare Corp)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is further subject to the satisfaction (or, at or prior to the extent permitted by Applicable Law, waiver by the Company) Effective Time of each of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent contained set forth in Section 5.05(a(i) Article 5 (other than in Sections 5.01 (first sentence only), 5.02, 5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.17, 5.18 and 5.21) shall be true and correct, subject only to de minimis exceptions, correct both at and as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing Date, except where such failures to be so true and correct (or, if without regard to “materiality,” Parent Material Adverse Effect and similar qualifiers contained in such representations and warranties are given as of another specific datewarranties) have not had, at and as of such date); would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (ii) the representations and warranties of Parent contained in Section Section 5.01 (other than the third first sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 only) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing (orDate, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) Section 5.02 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at date immediately preceding the date of this Amended and as of the Closing; and Restated Merger Agreement, (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Section 5.21 shall be true and correct in all material respects at and as of the date of this Amended and Restated Merger Agreement and at and as of the Closing Date as if though made at and as of the Closing Date, (or, if v) Section 5.05(a) shall be true and correct (without regard to “materiality,” Parent Material Adverse Effect and similar qualifiers contained in such representations and warranties are given as of another specific date, warranties) at and as of such datethe date of this Amended and Restated Merger Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for inaccuracies that are not material and (vi) Sections 5.05(b), except5.06, in the case of this clause (iv) only5.07, where the failure of such representations 5.08, 5.09, 5.10, 5.11, 5.12, 5.17 and warranties to 5.18 shall be true and correct has both at and as of the date of this Amended and Restated Merger Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to “materiality,” Parent Material Adverse Effect and similar qualifiers contained in such representations and warranties) have not had had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii), (iv), (v) and (vi), as applicable) only as of such date and period;
(b) Parent and its Subsidiaries shall have performed and complied in all material respects with the covenants and obligations under this Agreement contemplated to be performed or complied with by Parent and its Subsidiaries prior to the Effective Time;
(c) since the date of this Amended and Restated Merger Agreement, there shall not have been any Circumstances that have had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect and that are continuing; and
(d) Parent shall have delivered to the Company a certificate signed by an executive officer of Parent dated as of the date of the Effective Time certifying that the conditions specified in Section 9.03(a), Section 9.03(b) and Section 9.03(c) have been satisfied.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Amc Entertainment Holdings, Inc.), Agreement and Plan of Merger (Carmike Cinemas Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed in all material respects all each of its their obligations hereunder under this Agreement required to be performed by it them at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained and Merger Sub set forth in Section 5.05(aSections 5.01, 5.02, 5.04(a) and 5.06 of this Agreement shall be true and correct, subject only to de minimis exceptions, at and correct in all material respects as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing (orextent any such representation or warranty expressly relates to an earlier date or period, if such representations and warranties are given as of another specific date, at and in which case as of such datedate or period); (ii) the representations and warranties of Parent contained set forth in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Section 5.05 of this Agreement shall be true and correct in all material respects at and (except for de minimis inaccuracies) as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing (orextent any such representation or warranty expressly relates to an earlier date or period, if such representations and warranties are given as of another specific date, at and in which case as of such datedate or period); (iii) the representations representation and warranties warranty of Parent contained set forth in Section 5.09(a)(ii) Section 5.12 of this Agreement shall be true and correct in all respects at as of the date of the Agreement; and (iv) the representations and warranties of Parent set forth in this Agreement (other than those referred to in the preceding clauses (i)-(iii)) shall be true and correct as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing; and (iv) the other representations and warranties of Parent contained extent any such representation or warranty expressly relates to an earlier date or period, in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and which case as of such datedate or period), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, in the case of clauses (i), (ii) and (iv) disregarding for this purpose all “Parent Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties;
(c) 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 Parent dated as of the Closing Date certifying that the conditions specified in paragraphs (a), (b) and (c) of this Section 9.03 have been satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Pioneer Natural Resources Co)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are Mergers is subject to the satisfaction (or, on or prior to the extent permitted by Applicable Law, waiver Closing Date of the following conditions (which may be waived in whole or in part by the Company) of the following further conditions:):
(a) each of Parent Parent, Merger Sub 1 and Merger Sub 2 shall have performed in all material respects all of its covenants and obligations hereunder required to be performed by it at or prior to the Effective TimeClosing;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section the first sentence of Section 5.01 (Corporate Existence and Power), Section 5.02 (Corporate Authorization), Section 5.05(a) (Capitalization) (other than the second and third sentences of Section 5.05(a)) and Section 5.18 (Finders’ Fees) shall be true and correctcorrect in all material respects, subject only to de minimis exceptions, in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if other than any such representations and warranties are given that by their terms address matters only at and as of another specific datespecified time, which shall be true and correct in all material respects only at and as of such datetime); , (ii) the representations and warranties of Parent contained in Section 5.01 the second and third sentences of Section 5.05(a) (Capitalization) shall be true and correct, except where the failure to be true and correct, individually or in the aggregate, is a de minimis inaccuracy, and (iii) all other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 representations and Section 5.23 warranties of Parent contained in this Agreement or in any certificate or other writing delivered by Parent pursuant hereto shall be true and correct in all material respects (disregarding all materiality and Parent Material Adverse Effect qualifiers contained therein), in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if other than any such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) which shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, Effect qualifiers contained therein) only at and as of such datetime), except, in the case of this clause (iv) onlyiii), where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(c) since the date of this Agreement, there shall not have been any effect, change, condition, occurrence or event that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect;
(d) the Company shall have received a certificate signed by an executive officer of Parent certifying that each of the conditions set forth in Section 9.03(a), Section 9.03(b) and Section 9.03(c) has been satisfied; and
(e) the Company shall have received the opinion of nationally recognized outside counsel, in form and substance reasonably satisfactory to the Company, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel may require and rely upon representations contained in certificates of officers of Parent, the Company, Merger Sub 1 and Merger Sub 2, reasonably satisfactory in form and substance to such counsel.
Appears in 2 contracts
Samples: Merger Agreement (St Jude Medical Inc), Merger Agreement (Abbott Laboratories)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction of the following additional conditions, any one or more of which may be waived (or, to the extent permitted by Applicable Law, waiver if legally permitted) in writing by the Company) of the following further conditions:
(a) each Each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent Acquiror and Merger Sub contained in Section 5.05(a) this Agreement (without giving effect to any materiality qualification therein), other than the representations and warranties set forth in Section 4.1, Section 4.2, Section 4.3 and Section 4.8, shall be true and correctcorrect in all respects as of the Closing Date, subject only to de minimis exceptions, as if made anew at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orthat time, if such except with respect to representations and warranties are given which speak as of another specific to an earlier date, which representations and warranties shall have been true and correct at and as of such date); , except for, in each case, any inaccuracy or omission that would not reasonably be expected to materially adversely affect the ability of Acquiror to consummate the transactions contemplated by this Agreement in accordance with this Agreement.
(iib) Each of the representations and warranties of Parent Acquiror and Merger Sub contained in Section 5.01 (other than the third sentence thereof)Section 4.1, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 Section 4.2 and Section 5.23 Section 4.3 shall be true and correct in all material respects as of Closing Date, as if made anew at and as of the date that time.
(c) The representation and warranty of this Agreement Acquiror and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent Merger Sub contained in Section 5.09(a)(ii) Section 4.8 shall be true and correct in all respects as of the Closing Date, as if made anew at and as of that time.
(d) Each of the date covenants of this Agreement Acquiror and at and Merger Sub to be performed as of or prior to the Closing as if made at and as shall have been performed in all material respects.
(e) Acquiror shall have delivered to the Company a certificate signed by an officer of the Closing; and (iv) the other representations and warranties of Parent contained in this AgreementAcquiror, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of dated the Closing as if made at and as of Date, certifying that, to the Closing (or, if such representations and warranties are given as of another specific date, at and as knowledge of such dateofficer, in his or her corporate capacity only and not individually, the conditions specified in Section 8.3(a), exceptSection 8.3(b), in the case of this clause (ivSection 8.3(c) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Section 8.3(d) have been fulfilled.
Appears in 2 contracts
Samples: Merger Agreement (Boyd Gaming Corp), Merger Agreement (ALST Casino Holdco, LLC)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed in all material respects all of its obligations hereunder required to be performed by it at on or prior to the Effective Time;Closing Date of the following conditions (which may be waived in whole or in part by the Company):
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(ca) (i) the representations and warranties of Parent and Merger Sub contained in Section 5.05(athe first two sentences of Section 5.01 (Corporate Existence and Power) and in Section 5.02 (Corporate Authorization) and Section 5.12 (Finders’ Fees) shall be true and correctcorrect in all material respects, subject only to de minimis exceptions, in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if other than any such representations and warranties are given as of another specific date, that by their terms address matters only at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof)another specified time, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 which shall be true and correct in all material respects only at and as of such time), and (ii) all other representations and warranties of Parent and Merger Sub contained in this Agreement shall be true and correct (without giving effect to any “materiality,” Parent Material Adverse Effect or “all material respects” qualifications set forth therein), in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if other than any such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) which shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, only at and as of such datetime), except, in the case of this clause (iv) onlyii), where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(b) each of Parent and Merger Sub shall have performed in all material respects all of its covenants and obligations hereunder required to be performed by it at or prior to the Closing; and
(c) the Company shall have received a certificate signed by an executive officer of Parent certifying that the conditions set forth in Section 9.03(a) and Section 9.03(b) have been satisfied.
Appears in 2 contracts
Samples: Management Agreement (Resource Capital Corp.), Merger Agreement (Resource America, Inc.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (oror written waiver, if permissible under applicable Law) on or prior to the extent permitted by Applicable Law, waiver by the Company) Closing of the following further conditions:
(a) each (i) Each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent and Merger Sub (except the representations or warranties in Section 5.2 (Authorization; Validity of Agreement; Necessary Action)) that are contained in Section 5.01 this Agreement and in any certificate or other writing delivered by Parent pursuant hereto (other than which shall, for the third sentence thereofpurposes of this Section 8.3(a), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 be read without any qualification contained therein as to materiality or Material Adverse Effect on Parent) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of such time (except to the Closing (or, if extent that any such representations representation and warranties are given warranty expressly speaks as of another specific an earlier date, at in which case such representation and warranty (as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiso read) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such earlier date), except, in the case of this clause (iv) only, where the failure of with such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, whether individually or in the aggregate, a Parent Material Adverse Effect;Effect on Parent, and (iii) the representations and warranties of Parent and Merger Sub contained in Section 5.2 (Authorization; Validity of Agreement; Necessary Action), which shall, for the purposes of this Section 8.3(a), be read without any qualification contained therein as to materiality or Material Adverse Effect on Parent, shall be true at and as of the Effective Time in all material respects as if made 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 (as so read) shall be true in all material respects as of such earlier date); and
(b) The Company shall have received a certificate dated as of the Closing Date signed on behalf of Parent by the chief executive officer or another senior officer of Parent to the foregoing effect.
Appears in 2 contracts
Samples: Merger Agreement (Gen Probe Inc), Merger Agreement (Hologic Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained and Sub (i) set forth in Section 5.05(aSection 5.13(a) shall be true and correct, subject only to correct except for de minimis exceptions, at and inaccuracies as of the date of this Agreement and at as of the Closing Date as if made on and as of the Closing as if made at and Date (unless any such representation or warranty addresses matters only as of the Closing (or, if a particular date or with respect to a specific period in which event such representations representation or warranty shall be so true and warranties are given as of another specific date, at and correct only as of such dateparticular date or with respect to such specific period); , (ii) the representations and warranties of Parent contained set forth in Section 5.01 (other than the third sentence thereofSection 5.1(a), Section 5.02Section 5.2, Section 5.04(i)Section 5.9, Section 5.21, Section 5.22 Section 5.13(b) and Section 5.23 Section 5.17 shall be true and correct in all material respects at and as of the date of this Agreement and at as of the Closing Date as if made on and as of the Closing as if made at and Date (unless such representation or warranty addresses matters only as of the Closing (or, if a particular date or with respect to a specific period in which event such representations representation or warranty shall be so true and warranties are given as of another specific date, at and correct in all material respects only as of such dateparticular date or with respect to such specific period); , (iii) the representations and warranties of Parent contained set forth in Section 5.09(a)(iiSection 5.7(i) shall be true and correct in all respects at and as of the date of this Agreement and at as of the Closing Date as if made on and as of the Closing as if made at and as Date (excluding, however, solely with respect to Section 5.7(i), clause (b) of the Closing; definition of Parent Material Adverse Effect for the purposes of this clause (iii)), and (iv) the other representations and warranties of Parent contained set forth in this Agreement, disregarding all qualifications other than these sections specifically identified in clauses (i), (ii) and exceptions contained therein relating to materiality or Parent Material Adverse Effect(iii) of this Section 7.3(a), shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and Date (unless any such representation or warranty addresses matters only as of the Closing (or, if a particular date or with respect to a specific period in which event such representations representation or warranty shall be true and warranties are given as of another specific date, at and correct only as of such dateparticular date or with respect to such specific period), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be so true and correct has not had and (without giving effect to any limitation as to “materiality” (or similar qualifications) or “Parent Material Adverse Effect” set forth therein) would not reasonably be expected to havenot, either individually or in the aggregate, have a Parent Material Adverse Effect;
(b) each of Parent and Sub shall 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 or prior to the Closing, including the deliverables required to be filed with the Registrar in accordance with Sections 104(H) and 108(2) of the Companies Act;
(c) the Company shall have received a certificate signed by an authorized 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) since the date of this Agreement, there shall not have occurred any Parent Material Adverse Effect; provided that, clause (b) of the definition of Parent Material Adverse Effect shall be excluded from such definition for the purpose of determining the satisfaction of this Section 7.3(d).
Appears in 2 contracts
Samples: Merger Agreement (NXP Semiconductors N.V.), Merger Agreement (Freescale Semiconductor, Ltd.)
Conditions to the Obligations of the Company. The obligations of the Company and SCCII to consummate the Merger Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(a) each of the representations and warranties of Parent and the Merger Subs, (i) set forth in Section 5.2(a), Section 5.2(b) and Sections 5.3(a) – (c) shall be true and accurate in all material respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be true and correct only as of such particular date or with respect to such specific period) and (ii) set forth in this Agreement, other than those Sections specifically identified in clause (i) of this Section 7.3(a), shall be true and correct as of the date of this Agreement and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be true and correct only as of such particular date or with respect to such specific period), except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to Parent Material Adverse Effect, “materiality” or “material adverse effect” set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect;
(b) each of Parent and each Merger Sub shall have performed in all material respects all of its the respective obligations hereunder required to be performed by it Parent or such Merger Sub, as the case may be, at or prior to the Effective Time;Closing; and
(bc) both Since December 31, 2014 there shall not (i) any applicable waiting period have occurred or periods under the HSR Act shall have expired or been terminated come into existence and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, continuing a Parent Material Adverse Effect;; and
(d) the Company shall have received a certificate signed by an authorized 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), Section 7.3(b) and Section 7.3(c) have been satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Fidelity National Information Services, Inc.), Merger Agreement (Sungard Capital Corp Ii)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed performed, in all material respects respects, all of its obligations hereunder required to be performed by it at or prior to the Merger Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) Section 5.01 (other than the third and last sentences thereof), Section 5.02 (other than the last sentence of Section 5.02(b)), Section 5.04(a), Section 5.05, Section 5.23, Section 5.24 and Section 5.25 shall be true and correct, subject only to de minimis exceptions, correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiSection 5.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iviii) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iviii) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;; and
(c) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.03(a) and Section 9.03(b).
Appears in 2 contracts
Samples: Merger Agreement (Bristol Myers Squibb Co), Merger Agreement (Celgene Corp /De/)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained and the Merger Subs set forth in Section 5.05(aSection 5.2(a) shall be true and correct, subject only to accurate (except for de minimis exceptions, at and as of the date of this Agreement and at inaccuracies) both when made and as of the Closing Date as if made at and as of the Closing such date (or, if such other than those representations and warranties are given that address matters only as of another a particular date or only with respect to a specific date, at period of time which representations and warranties need only be true and accurate as of such datedate or with respect to such period); , (ii) the representations and warranties of Parent contained and the Merger Subs set forth in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section Sections 5.3 and 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at accurate both when made and as of the Closing Date as if made at and as of the Closing such date (or, if such other than those representations and warranties are given that address matters only as of another a particular date or only with respect to a specific date, at period of time which representations and warranties need only be true and accurate as of such date); date or with respect to such period) and (iii) the all other representations and warranties of Parent contained and the Merger Subs set forth in Section 5.09(a)(ii) this agreement shall be true and correct accurate in all respects at and (without giving effect to any limitation as of the date of this Agreement and at 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 the Closing; and such date (iv) the other than those representations and warranties that address matters only as of Parent contained in this Agreement, disregarding all qualifications a particular date or only with respect to a specific period of time which representations and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall warranties need only be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and accurate as of such date), except, in the case of this clause (ivdate or with respect to such period) only, except where the failure of such representations and warranties to be so true and correct accurate would not, individually or in the aggregate, have a Parent Material Adverse Effect;
(b) each of Parent and each Merger Sub shall have performed or complied in all material respects with all of the respective obligations and covenants hereunder required to be performed or complied with by Parent or the Merger Subs, as the case may be, at or prior to the Closing;
(c) the Company shall have received a certificate signed by an executive 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 setting forth the Net Asset Value of Parent for purposes of Section 3.1(d); and
(d) since the date of this Agreement, no fact(s), change(s), event(s), development(s) or circumstance(s) shall have occurred, arisen or come into existence or first become known to the Company, or any worsening thereof (only to the extent of such worsening), and which has not had and or would not reasonably be expected to have, individually or in the aggregateaggregate with all such other fact(s), change(s), event(s), development(s) or circumstance(s), a Parent Material Adverse Effect;; provided that information as and to the extent set forth in any Parent SEC Report filed after January 1, 2015 and publicly available prior to the date of this Agreement and only as and to the extent disclosed therein (other than disclosures in any exhibits or schedules thereto or in any documents incorporated by reference therein, and other than any forward-looking disclosures set forth in any “risk factor” section and any disclosures in any section relating to “forward-looking statements” to the extent they are primarily predictive or forward looking in nature) shall be deemed to have been known by the Company as of the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (PennantPark Floating Rate Capital Ltd.), Merger Agreement (MCG Capital Corp)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (satisfaction, or, to the extent permitted by Applicable Law, waiver by the Company) Company of, on or prior to the Closing, of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(aand Merger Sub set forth in: (i) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing Section 5.02 (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereofCorporate Authorization), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 Section 5.03 (Consents and Section 5.23 Approvals; No Violations) and Section 5.11 (Brokers’ Fees) shall be true and correct in all material respects at (disregarding all qualifications or limitations as to “materiality,” “Parent Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at on and as of such date (except to the extent any such representation or warranty expressly relates to a specified date, in which case such representation or warranty shall be so true and correct only on and as of such specific date); , and (iiiii) Article 5 (other than the representations and warranties of Parent contained referred to in Section 5.09(a)(iithe foregoing clause (i)) hereof shall be true and correct in (disregarding all respects at qualifications or limitations as to “materiality,” “Parent Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and at and as of the Closing Date as if though made at on and as of such date (except to the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if extent such representations and warranties are given as of another specific date, at made on and as of a specified date, in which case such representation or warranty shall be so true and correct only as of such specified date), except, except in the case of this clause (ivii) only, where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(b) Parent and Merger Sub shall each have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date; and
(c) the Company shall have received at the Closing a certificate signed on behalf of Parent by the Chief Executive Officer or the Chief Financial Officer of Parent certifying that the conditions set forth in Section 7.03(a) and Section 7.03(b) have been satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Del Taco Restaurants, Inc.), Merger Agreement (Jack in the Box Inc /New/)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is further subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;Time of each of the following conditions:
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (ia) the representations and warranties of Parent contained set forth in Section 5.05(a(i) Article 5 (other than Section 5.01, Section 5.02, Section 5.04, Section 5.05, Section 5.06, Section 5.18 and Section 5.20) shall be true and correct, subject only to de minimis exceptions, correct both at and as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing Date, except where such failures to be so true and correct (or, if without regard to “materiality,” Material Adverse Effect and similar qualifiers contained in such representations and warranties are given as except in the case of another specific datethe first sentence of Section 5.13) have not had, at and as of such date); would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Section 5.05 shall be true and correct (without regard to “materiality,” Material Adverse Effect and similar qualifiers contained in such representations and warranties) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and (iii) Section 5.01, Section 5.02, Section 5.04, Section 5.06, Section 5.18 and Section 5.20 shall be true and correct (without regard to “materiality,” Material Adverse Effect and similar qualifiers contained in such representations and warranties) in all material respects at and as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing (orDate; provided, if such however, that representations and warranties that are given made as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date and period;
(b) Parent and its Subsidiaries shall have performed and complied in all material respects at with the covenants and obligations under this Agreement contemplated to be performed or complied with by Parent and its Subsidiaries prior to the Effective Time;
(c) Parent shall have delivered to the Company a certificate signed by an executive officer of Parent dated as of the date of this Agreement the Effective Time certifying that the conditions specified in Section 9.03(a) and at and as of the Closing as if made at and as of the ClosingSection 9.03(b) have been satisfied; and and
(ivd) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of since the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orAgreement, if such representations and warranties are given as of another specific datethere shall not have been any Circumstance that has had, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Effect on Parent.
Appears in 2 contracts
Samples: Merger Agreement (Transocean Ltd.), Merger Agreement (Transocean Ltd.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate effect the Merger Closing are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditionsconditions as of immediately prior to the Closing:
(a) (i) each of Parent Parent, New Charter, Merger Subsidiary One, Merger Subsidiary Two and Merger Sub Subsidiary Three shall have performed in all material respects all of its material obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent contained in Section Sections 5.01, 5.02, 5.04(a), the first sentence and the last three sentences of Section 5.05(a), the last sentence of Section 5.05(b), Sections 5.10(b), 5.19 and 5.20, and that are not qualified by materiality or Parent Material Adverse Effect shall be true and correct in all material respects and any such representations and warranties that are qualified by materiality or Parent Material Adverse Effect shall be true and correct at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (other than any such representations and warranties that by their terms address matters only at and as of another specified time, which shall be true and correct in all material respects or true and correct, as the case may be, only at and as of such time), (B) the representations and warranties of Parent contained in Section 5.05 (other than the first sentence and the last three sentences of Section 5.05(a) and the last sentence of Section 5.05(b)) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than any such representations and warranties are given that by their terms address matters only at and as of another specific datespecified time, which shall be true and correct, subject only to de minimis exceptions, only at and as of such datetime); , and (iiC) the all other representations and warranties of Parent Parent, New Charter, Merger Subsidiary One, Merger Subsidiary Two and Merger Subsidiary Three contained in Section 5.01 (this Agreement or in any certificate or other than the third sentence thereof)writing delivered by Parent, Section 5.02New Charter, Section 5.04(i)Merger Subsidiary One, Section 5.21, Section 5.22 and Section 5.23 Merger Subsidiary Two or Merger Subsidiary Three pursuant hereto shall be true and correct in (disregarding all material respects materiality and Parent Material Adverse Effect qualifications contained therein) at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than any such representations and warranties are given that by their terms address matters only as of another specific datespecified time, which shall be true and correct (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) only at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such datetime), exceptwith, in the case of this clause (ivC) only, where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; and (iii) the Company shall have received a certificate signed by an executive officer of Parent to the foregoing effect and certifying that the condition set forth in Section 9.03(c) has been satisfied;
(b) the Company shall have received the opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, in form and substance reasonably satisfactory to the Company, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, New Charter, Merger Subsidiary One, Merger Subsidiary Two, Merger Subsidiary Three and the Company, all of which are consistent with the state of facts existing as of the First Company Merger Effective Time, to the effect that the Second Company Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, which opinion shall not have been withdrawn or modified in any material respect. In rendering the opinion described in this Section 9.03(b), Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP shall have received and may rely upon the Tax Representation Letters referred to in Section 8.07(b); and
(c) since the date hereof, there shall not have occurred and be continuing any event, occurrence, development or 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.
Appears in 2 contracts
Samples: Merger Agreement (Charter Communications, Inc. /Mo/), Merger Agreement (Time Warner Cable Inc.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(ai) each Each of Parent Buyer and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent Buyer and Merger Subsidiary contained in Section 5.05(a) this Agreement and in any certificate or other writing delivered by Buyer or Merger Subsidiary pursuant hereto shall be true when made and correct(x) in respect of those representations and warranties that are qualified as to materiality, subject only to de minimis exceptions, shall be true at and as of to the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time, and (or, if such y) in respect of those representations and warranties that are given as of another specific datenot so qualified, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of such time (in each case except to the Closing (or, if extent that such representations and warranties are given speak as of another specific an earlier date, at ) and as of such date); (iiiii) the representations Company shall have received a certificate signed by the Chief Executive Officer of Buyer to the foregoing effect;
(b) no court, arbitrator or governmental body, agency or official shall have issued any order, and warranties of Parent contained in Section 5.09(a)(ii) there shall not be true and correct in all respects at and as any statute, rule or regulation, restraining or prohibiting the consummation of the date Merger and no proceeding which is likely to (i) prohibit, alter, prevent or materially delay the Merger, or (ii) except for any Section 1.07 Claims, prohibit, alter, prevent or materially delay the transactions contemplated hereby shall have been instituted by any Person before any court, arbitrator or governmental body, agency or official and be pending; and
(c) the Company shall have received all documents that the Company shall have reasonably requested relating to the existence of this Agreement Buyer and at Merger Subsidiary and as the authority of the Closing as if made at Buyer and as of the Closing; and (iv) the other representations and warranties of Parent contained in Merger Subsidiary to enter into this Agreement, disregarding the Commitment Letters and the Financing Agreements, all qualifications in form and exceptions contained therein relating substance satisfactory to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Company.
Appears in 2 contracts
Samples: Merger Agreement (Plastic Specialties & Technologies Inc), Merger Agreement (Puretec Corp)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(ai) each of Parent and Merger Sub Acquiror shall have performed in all material respects all of its their obligations hereunder required to be performed by it them at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent and Acquiror contained in Section 5.05(a) this Agreement that are qualified by reference to materiality or an Acquiror Material Adverse Effect shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement correct when made and at and as of the Closing Effective Time, as if made at and as of the Closing such time (or, if such provided that representations and warranties are given made as of another a specific date, at date shall be required to be true and correct as of such datedate only); , (iiB) the representations and warranties of the Parent contained and Acquiror set forth in Section 5.01 (other than the third sentence thereof)Section 5.1, Section 5.02Section 5.2, Section 5.04(i), Section 5.21, Section 5.22 Section 5.6 and Section 5.23 Section 5.7 that are not qualified by Acquiror Material Adverse Effect shall be have been true and correct in all material respects at and as of the date of this Agreement when made and at and as of the Closing Effective Time, as if made as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), and (C) all other representations and warranties of Parent and Acquiror shall be true and correct when made and at and as of the Effective Time as if made at and as of the Closing such time (or, if such provided that representations and warranties are given made as of another a specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) date shall be required to be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such datedate only), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to havecorrect, individually or in the aggregate, does not have, and is not reasonably likely to have, an Acquiror Material Adverse Effect and (iii) the Company shall have received a certificate signed by the Chief Executive Officer or President of each of Parent and Acquiror to the foregoing effect;
(b) Parent shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings identified on Section 9.2(b) of the Company Disclosure Schedule; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by the Company of any of its material covenants in this Agreement; and
(c) since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, an Acquiror Material Adverse Effect;.
Appears in 2 contracts
Samples: Merger Agreement (Hollywood Entertainment Corp), Merger Agreement (Hollywood Entertainment Corp)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of (i) the Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 this Agreement and in any certificate or other writing delivered by Parent pursuant hereto (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 x) that are qualified by materiality or Material Adverse Effect shall be true at and correct as of the Effective Time as if made at and as of such time (except to the extent such representations and warranties speak as of an earlier time, in which case such representations and warranties shall be true as of such earlier time), and (y) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of such time (except to the Closing (or, if extent such representations and warranties are given speak as of another specific datean earlier time, at in which case such representations and warranties shall be true as of such date); earlier time) and (iii) the Company shall have received a certificate signed by an executive officer of Parent to the foregoing effect;
(b) the Company shall have received an opinion of Xxxxxxx & Baris, L.L.P. in form and substance reasonably satisfactory to the Company, on the basis of certain facts, representations and warranties assumptions set forth in such opinion, dated the Closing Date, to the effect that the Merger will be for federal income tax purposes a reorganization qualifying under the provisions of Section 368(a) of the Code and that each of Parent contained in Section 5.09(a)(iiand the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, such counsel shall be true entitled to rely upon representations of officers of Parent and correct the Company substantially in all respects at the form of Exhibit D and as E hereto; and
(c) Parent shall have executed and delivered, subject to the effectiveness of the date of this Agreement Merger, all supplemental and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties amended documents required to be true and correct has not had and would not reasonably be expected executed by Parent to have, individually or in effect the aggregate, a Parent Material Adverse Effect;Trust Preferred Assumption.
Appears in 2 contracts
Samples: Merger Agreement (Mercantile Bankshares Corp), Merger Agreement (Monroe James Bancorp Inc)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent Acquiror contained in Section 5.05(a) Section 5.12 shall be true and correct, subject only to correct in all but de minimis exceptions, at and respects as of the date of this Agreement and at and as of the Closing Date as if though made at on and as of the Closing such date (or, if such in the case of representations and warranties are given that address matters only as of another specific a particular date, at and as of such date); , (ii) the representations and warranties of Parent contained in Section 5.01 Acquiror Fundamental Representations (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Section 5.12) shall be true and correct in all material respects at and respects, in each case, as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing (or, if such representations and warranties are given as of another specific date, 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) and (iii) each of the representations and warranties of Parent Acquiror contained in Section 5.09(a)(iithis Agreement other than the Acquiror Fundamental Representations (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 at and material respects, in each case as of the date of this Agreement and at and as of the Closing Date as if though made at on and as of such date (or, in the Closing; and (iv) the other case of representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and that address matters only as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific a particular date, at and as of such date), except, in ;
(b) Each of the case covenants of this clause (iv) only, where the failure of such representations and warranties Acquiror to be true performed or complied with as of or prior to the Closing shall have been performed and correct has not had complied with in all material respects;
(c) Directors and would not reasonably officers of Acquiror set forth on Section 9.3(b) of the Acquiror Disclosure Letter shall have resigned or otherwise been removed, effective as of or prior to the Closing;
(d) The sum of (x) the Trust Amount plus (y) the PIPE Investment Amount, is equal to or greater than $220,000,000; and
(e) Acquiror shall have delivered (or cause to have been delivered) each of the Closing deliverables to be expected delivered by it pursuant to haveSection 2.4(b) other than any payments to be made pursuant thereto, individually or in which payments shall be made at the aggregate, a Parent Material Adverse Effect;Closing.
Appears in 2 contracts
Samples: Merger Agreement (Xos, Inc.), Merger Agreement (NextGen Acquisition Corp)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(athe first and last sentences of Section 5.01 (Corporate Existence and Power), Section 5.02 (Corporate Authorization), Section 5.04(a) (Non-contravention) and Section 5.26 (Finders’ Fees) shall be true and correct, subject only to de minimis exceptions, correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 Section 5.05(a) (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Capitalization) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuracies; (iii) the representations representation and warranties warranty set forth in Section 5.09(b) (Absence of Parent contained in Section 5.09(a)(iiCertain Changes) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, Article V (disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, ) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to havehad, individually or in the aggregate, a Parent Material Adverse Effect;
(c) since the date of this Agreement, there shall not have occurred any Parent Material Adverse Effect;
(d) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 8.03(a), Section 8.03(b) and Section 8.03(c); and
(e) the Company shall have received the Tax Opinion; in connection with rendering such opinion, Tax Counsel shall be entitled to receive and may rely on the Parent Tax Certificate and the Company Tax Certificate.
Appears in 2 contracts
Samples: Merger Agreement (Amryt Pharma PLC), Merger Agreement (Chiasma, Inc)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is further subject to the satisfaction (or, at or prior to the extent permitted by Applicable Law, waiver by the Company) Effective Time of each of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent contained set forth in Section 5.05(a(i) Article 5 (other than in Sections 5.01 (first sentence only) and 5.02) shall be true and correct, subject only to de minimis exceptions, correct both at and as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing Date, except where such failures to be so true and correct (or, if without regard to “materiality,” Parent Material Adverse Effect and similar qualifiers contained in such representations and warranties are given as of another specific datewarranties) have not had, at and as of such date); would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, and (ii) the representations and warranties of Parent contained in Section Sections 5.01 (other than the third first sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 only) and Section 5.23 5.02 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing (orDate, if such provided, however, that representations and warranties that are given made as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) a particular date or period shall be true and correct (in the manner set forth in clauses (i) and (ii), as applicable) only as of such date and period;
(b) Parent and its Subsidiaries shall have performed and complied in all material respects at with the covenants and obligations under this Agreement contemplated to be performed or complied with by Parent and its Subsidiaries prior to the Effective Time; and
(c) Parent shall have delivered to the Company a certificate signed by an executive officer of Parent dated as of the date of this Agreement the Effective Time certifying that the conditions specified in Section 9.03(a) and at and as of the Closing as if made at and as of the Closing; and (ivSection 9.03(b) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;have been satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Amc Entertainment Inc), Merger Agreement (Carmike Cinemas Inc)
Conditions to the Obligations of the Company. The obligations of the -------------------------------------------- Company to consummate the Merger are subject to the satisfaction (orfulfillment at or prior to the Effective Time of the following conditions, any or all of which may be waived in whole or in part by the Company to the extent permitted by Applicable Law, waiver by the Company) of the following further conditionsapplicable law:
(a) each the representations and warranties of Parent set forth in Section 5.1 that are qualified as to materiality or Material Adverse Effect, or in Sections 5.1(a), (b) or (d) shall be true and Merger Sub correct (provided, however, that with respect to the representations and warranties contained in Section 5.1(b), an understatement in Section 5.1(b) of the number of Parent Shares outstanding or of the number of Parent Shares issuable under outstanding options, warrants or other commitments shall not render such representations and warranties untrue or incorrect unless the difference between (x) the actual number of Parent Shares outstanding or the actual number of Parent Shares issuable under outstanding options, warrants or other commitments, and (y) the number of Parent Shares outstanding or the number of Parent Shares issuable under outstanding options, warrants or other commitments set forth in Section 5.1(b) is equal to or greater than one-half percent (0.5%) of the number set forth in Section 5.1(b)), and those that are not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement, and as of the Effective Time with the same force and effect as if made on and as of the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such date), in each case except as permitted or contemplated by this Agreement (it being understood that for purposes of determining the accuracy of such representations and warranties (i) any update or modification to the Parent's Disclosure Schedule made or purported to have been made without the Company's written consent thereto shall be disregarded, (ii) any inaccuracy that results from a Material Adverse Effect Exception shall be disregarded, and (iii) with respect to representations and warranties as if made as of the Effective Time, (x) all qualifications as to materiality or Material Adverse Effect shall be disregarded, and (y) any inaccuracies in such representations and warranties (as so modified) shall be disregarded, if the inaccuracies (considered collectively) do not constitute and are not reasonably expected to result in a Material Adverse Effect on Parent).
(b) Parent and its subsidiaries shall have performed or complied in all material respects all of with its obligations hereunder agreements and covenants required to be performed by it at or complied with under this Agreement as of or prior to the Effective Time;
(c) Parent shall have delivered to the Company a certificate of its Chief Executive Officer and Chief Financial Officer to the effect that each of the conditions specified in Section 7.1 (as it relates to Parent) and clauses (a), (b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (iid) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be of this Section 7.2 is satisfied in full force and effectall respects;
(cd) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of from the date of this Agreement and at and as of to the Closing as if made at and as of Effective Time, there shall not have been any event or development which has resulted in a Material Adverse Effect (other then any Material Adverse Effect Exception) on Parent nor shall there have occurred any event or development which could reasonably be likely to result in the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of future in a Material Adverse Effect on Parent contained in Section 5.01 (other than any Material Adverse Effect Exception);
(e) the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall Parent Shares to be true and correct issued in all material respects at and as the Merger to the stockholders of the date of this Agreement and at and as of Company shall have been approved for listing on the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;NNM.
Appears in 2 contracts
Samples: Merger Agreement (Usweb Corp), Merger Agreement (Usweb Corp)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Acquiror Fundamental Representations shall be true and correct in all material respects at and as of the date of this Agreement and at and respects, in each case as of the Closing as if made at and as of the Closing (orDate, if except with respect to such representations and warranties are given which speak as of another specific to an earlier date, at and as of such date); (iii) the which representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct 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 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 Closing as if made at date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, and as (iii) each of the Closing; and (iv) the other representations and warranties of Parent Acquiror contained in this Agreement, Agreement other than the Acquiror Fundamental Representations and the representations and warranties of Acquiror set forth in clause (ii) above (disregarding all any qualifications and exceptions contained therein relating to materiality and material adverse effect or Parent Material Adverse Effectany 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 at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptexcept for, in the case of this clause (iv) onlyeach case, where the failure of such representations and warranties to be true and correct has not had and inaccuracies or omissions that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effectmaterial adverse effect; provided, that for purposes of this Section 9.3(a) only, the representations and warranties set forth in Section 5.11 shall be true and correct solely as of the date of 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) 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;
(d) The Available Acquiror Cash shall be no less than the Minimum Available Acquiror Cash Amount;
(e) 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 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 such parties.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) (i) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent contained in Section 5.05(a) Section 5.01, 5.02, 5.05 and 5.16 shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true in all material respects only as of such date); (iiitime) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (ivB) the other representations and warranties of Parent and Merger Subsidiary contained in this Agreement, Agreement or in any certificate or other writing delivered by Parent or Merger Subsidiary pursuant hereto (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Effect qualifications contained therein) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such datetime), exceptwith, in the case of this clause (ivB) only, where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on Parent; and (iii) the Company shall have received a certificate signed by an executive officer of Parent to the foregoing effect;
(b) the Company shall have received an opinion of Cravath, Swaine & Xxxxx LLP 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 Effective Time, 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 and that each of Parent, Merger Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, Cravath, Swaine & Xxxxx LLP shall be entitled to rely upon representations of officers of Parent and the Company substantially in the form of Exhibit A and B hereto; and
(c) from the date of this Agreement to the Effective Time, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on Parent.
Appears in 1 contract
Samples: Merger Agreement (Pepsico Inc)
Conditions to the Obligations of the Company. The obligations ---------- -- --- ----------- -- --- ------- of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:conditions (any one of which may be waived in whole or part by the Company or the Stockholders Representative):
(a) each of (i) Parent and Merger Sub Subcorp shall have performed in all material respects all of its their respective obligations hereunder required to be performed by it them at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and ; (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) each of the representations and warranties of Parent contained in Section 5.05(a) this Agreement and any certificate or other writing delivered by Parent pursuant hereto that is qualified as to materiality shall be true and correct, subject only to de minimis exceptions, at correct and as of the date of this Agreement each such representation and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 warranty that is not so qualified shall be true and correct in all material respects at and respects, in each case as of the date of this Agreement hereof and at and as of the Closing Effective Time as if made at and as of such time, except (A) for changes permitted by this Agreement, and (B) that the Closing (or, if such representations and warranties are given made by Parent, and that address matters only as of another specific a particular date, at shall remain true and correct as of such date); and (iii) the representations and warranties Company shall have received a certificate signed by an executive officer of Parent contained in Section 5.09(a)(iito the foregoing effect;
(b) Parent shall have obtained the consent or approval of each person whose consent or approval shall be true required in connection with the Merger under all notes, bonds, mortgages, indentures, contracts, agreements, leases, licenses, permits, franchises and correct other instruments or obligations to which it or any of its subsidiaries is a party, except those for which failure to obtain such consents and approvals would not have a Parent Material Adverse Effect after the Effective Time;
(c) the Company and the Stockholder Representative shall have received from Xxxxxxx Xxxx LLP, counsel to Parent, a legal opinion, substantially in all respects at the form of Exhibit 7.03(c); --------------
(d) each of Parent and as of the Escrow Agent shall have executed and delivered the Escrow Agreement; and
(e) since the date of this Agreement Agreement, there shall not have arisen any change or effect that, when taken individually or together with all other adverse changes and at effects, is or is reasonably likely to be materially adverse to the business, results of operations or financial condition of Parent, or otherwise affect the ability of Parent to consummate the transactions contemplated hereby, excluding, however, any events, changes or effects arising --------- ------- out of (i) changes in national economic conditions or changes affecting the Company's industry generally, and as (ii) the announcement or consummation of the Closing as if made at Merger and as of the Closingtransactions contemplated thereby; and (iv) provided that a decrease in -------- the other representations and warranties trading price of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality Common Stock as reported on the Nasdaq National Market or such other exchange or automated quotation system on which the Parent Material Adverse EffectCommon Stock is then listed or quoted, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptnot, in the case and of this clause (iv) only, where the failure of such representations and warranties itself be deemed to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregateconstitute, a Parent Material Adverse Effect;material adverse change.
Appears in 1 contract
Conditions to the Obligations of the Company. The Notwithstanding any other provision of this Agreement, the obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditionsconditions precedent:
(a) each All of Parent the representations and Merger Sub warranties made by the Purchaser in this Agreement and in any documents or certificates provided by the Purchaser (i) shall have been true and correct in all material respects as of the date of this Agreement and (ii) shall have been true and correct as of the Effective Time as though made at and as of the Effective Time, provided, however, that if any representation or warranty (other than the representations contained in Sections 2.1(a), 2.1(b), 2.1(c), 2.2 and 2.3) is not true or correct as of the Effective Time, the condition in this clause (ii) shall nonetheless be deemed satisfied unless the facts or circumstances causing any representation or warranty not to be true or correct, either individually or in the aggregate, and without giving effect to any materiality qualifier set forth in any such representation or warranty, have a Material Adverse Effect on the Purchaser.
(b) Purchaser shall have performed in all material respects all of its obligations hereunder and shall have complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to or at the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;.
(c) (i) The Company shall have received a certificate signed by the representations Chairman and warranties Chief Executive Officer of Parent contained Purchaser, in Section 5.05(a) shall be true and correcthis capacity as such, subject only to de minimis exceptions, at and dated as of the date Effective Time, that based upon such Chief Executive Officer's knowledge, the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) All action required to be taken by or on the part of Purchaser to authorize the execution, delivery and performance of this Agreement and at and as the consummation of the Closing as if made at transactions contemplated hereby shall have been duly and as validly taken by the Board of Directors of Purchaser, and the Company shall have received certified copies of the Closing resolutions evidencing such authorization.
(or, if such representations and warranties are given as of another specific date, at and as of such date); (iie) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 The Company shall be true and correct in all material respects at and as have received an opinion of the date General Counsel of this Agreement and at and as of the Closing as if made at and as of the Closing (orPurchaser, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, substantially in the case form of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Exhibit H hereto.
Appears in 1 contract
Samples: Merger Agreement (Maf Bancorp Inc)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are Mergers is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent Acquiror contained in Section 5.05(a) Section 5.12 shall be true and correct, subject only to correct in all but de minimis exceptions, at and respects as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orAgreement, if except with respect to such representations and warranties are given which speak as of another specific an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date); , (ii) the Acquiror Fundamental Representations (other than Section 5.12) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as of Parent contained in Section 5.01 (other than the third sentence thereof)an earlier date, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 which representations and Section 5.23 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 or the Ancillary Agreements and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) each of the representations and warranties of Parent Acquiror contained in Section 5.09(a)(iithis 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 respects at and as of the date of this Agreement and at and material respects, in each case as of the Closing as if made at and as of the Closing; and (iv) the other Date, except with respect to such representations and warranties which speak as of Parent contained in this Agreementan earlier date, disregarding all qualifications which representations and exceptions contained therein relating to materiality or Parent Material Adverse Effect, warranties shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, in all material respects at and as of such date), exceptexcept for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement 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; provided, in the case that for purposes of this clause (ivb), 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 thirty (30) onlydays after written notice thereof from the Company (or if earlier, where five (5) Business Days prior to the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or Agreement End Date); and
(c) Acquiror shall hold in the aggregate, a Parent Material Adverse Effect;Trust Account an amount at least equal to the sum of (x) the Trust Amount plus (y) $1,500,000,000 (the "Minimum Available Cash Condition").
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate consummate, or cause to be consummated, the First Merger are subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each Each of Parent the Fundamental Representations of Buyer and Merger Sub 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;
Subs (b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(aother than Section 5.6) shall be true and correct, subject only to de minimis exceptions, at and correct in all material respects as of the date of this Agreement and at hereof and as of the Closing Date, as if made anew at and as of the Closing (orthat date, if such except with respect to representations and warranties are given which speak as of another specific to an earlier date, at and as of such date); (ii) the which representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of such date, except for any changes after the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties which are given as of another specific date, at and as of such date)contemplated or expressly permitted by this Agreement; (iii) the representations and warranties of Parent contained Buyer in Section 5.09(a)(iiSection 5.6 (Capitalization of Buyer) shall be true and correct in all respects at and (other than for de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that date (provided that to the Closing as if extent any representations and warranties in Section 5.6 are made at and as of the Closinga specified date, such representations and warranties shall be true and correct (other than for de minimis inaccuracies) only as of such specified date); and (iv) each of the other representations and warranties of Parent Buyer and Merger Subs contained in this AgreementArticle V, disregarding all qualifications and exceptions contained therein herein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at hereof and as of the Closing Date, as if made anew at and as of the Closing (orthat date, if such except with respect to representations and warranties are given which speak as of another specific 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 except for (ivi) only, where the failure of such representations and warranties to be true and correct has not had and any inaccuracy or omission that would not reasonably be expected to have, individually or in the aggregate, have a Parent Material Adverse Effect;Effect on Buyer and (ii) any changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement.
(b) Each of the covenants of Buyer and Merger Subs to be performed at or prior to the Closing shall have been performed in all material respects.
(c) Buyer shall have delivered to the Company a certificate signed by an officer of Buyer, dated as of the Closing Date, certifying that the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled (the “Buyer Closing Certificate”).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed in all material respects all each of its their obligations hereunder under this Agreement required to be performed by it them at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained and Merger Sub set forth in Section 5.05(aSections 5.01, 5.02 and 5.04(a) of this Agreement shall be true and correct, subject only to de minimis exceptions, at and correct in all material respects as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing (orextent any such representation or warranty expressly relates to an earlier date or period, if such representations and warranties are given as of another specific date, at and in which case as of such datedate or period); (ii) the representations and warranties of Parent contained set forth in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Section 5.05 of this Agreement shall be true and correct (except for de minimis inaccuracies) in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing (orextent any such representation or warranty expressly relates to an earlier date or period, if such representations and warranties are given as of another specific date, at and in which case as of such datedate or period); (iii) the representations representation and warranties warranty of Parent contained set forth in Section 5.09(a)(ii) Section 5.11 of this Agreement shall be true and correct in all respects at as of the date of the Agreement; and (iv) the representations and warranties of Parent set forth in this Agreement (other than those referred to in the preceding clauses (i)-(iii)) shall be true and correct as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing; and (iv) the other representations and warranties of Parent contained extent any such 77 representation or warranty expressly relates to an earlier date or period, in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and which case as of such datedate or period), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, in the case of clauses (i), (ii) and (iv) disregarding for this purpose all “Parent Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties;
(c) 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 Parent dated as of the Closing Date certifying that the conditions specified in paragraphs (a), (b) and (c) of this Section 9.03 have been satisfied.
Appears in 1 contract
Samples: Merger Agreement (Denbury Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) this Agreement or in any certificate or other writing delivered by Parent pursuant hereto (other than Fundamental Representations), without giving effect to any all materiality and Parent Material Adverse Effect qualifications contained therein, shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereoftime), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and with only such exceptions as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (ii) the Fundamental Representations of Parent contained in this Agreement shall be true in all material respects at and as of the Closing Date as if made at and as of such time (other than Fundamental Representations that by their terms address matters only as of another specified time, which shall be true only as of such time) and (iii) the representations and warranties of Parent contained in Section 5.05(a) and Section 5.05(b) of this Agreement shall be true in all respects at and as of the Closing Date as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except for any failures to be so true that are de minimis;
(b) each of Parent and the Merger Subs shall have performed all of its obligations hereunder required to be performed by it at or prior to the Closing (or any non-performance shall have been cured) in all material respects; provided that the failure by Parent or the Merger Subs to perform any of their obligations set forth in Section 8.08(b) shall not be deemed to constitute a failure of the closing condition set forth in this Section 9.03(b) to have been satisfied;
(c) the Company shall have received a certificate signed by a senior executive officer of Parent confirming the satisfaction of the conditions set forth in Sections 9.03(a) and 9.03(b); and
(d) since the date of this Agreement, there shall not have occurred and be continuing to occur any event, change, effect, occurrence or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Stewart Information Services Corp)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is also subject to the satisfaction or (or, to the extent permitted by Applicable Law, ) waiver by at or prior to the Company) Effective Time of the following further conditions:
(a) (i) each of Parent and Merger Sub Subsidiary shall have performed in all material respects all of its obligations hereunder obligations, and complied in all material respects with all agreements and covenants, in this Agreement required to be performed or complied with by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of each of Parent and Merger Subsidiary contained in Section 5.05(aSection 5.09(b) shall be true and correct, subject only to de minimis exceptions, at and correct in all respects as of immediately prior to the date of this Agreement and at and as of the Closing Effective Time, as if made at and as of the Closing such time, (or, if such representations and warranties are given as of another specific date, at and as of such date); (iiB) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Specified Representations shall be true and correct in all material respects at and as of immediately prior to the date of this Agreement and at and as of the Closing Effective Time, as if made at and as of the Closing such time (or, if other than such representations and warranties are given Parent Specified Representations that address matters only as of another specific datespecified time, at which shall be true and correct in all material respects only as of such date); time) and (iiiC) the other representations and warranties of Parent and Merger Subsidiary contained in Section 5.09(a)(iiArticle V (disregarding all materiality, Parent Material Adverse Effect and other similar qualifications contained therein) shall be true and correct in all respects at and as of immediately prior to the date of this Agreement and at and as of the Closing Effective Time, as if made at and as of the Closing; and such time (iv) the other than those representations and warranties that address matters only as of Parent contained in this Agreementanother specified time, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, which shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and in all respects only as of such datetime), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had and or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, and (iii) the Company shall have received a certificate to the foregoing effect, dated as of the Closing Date, signed on behalf of Parent by a duly authorized executive officer of Parent;
(b) (i) since the date of this Agreement there shall not have occurred a Parent Material Adverse Effect, and (ii) the Company shall have received a certificate to the forgoing effect, dated as of the Closing Date, signed on behalf of Parent by a duly authorized executive officer of Parent; and
(c) the Stockholder Representative shall have received each of the deliverables specified in Section 8.08(a).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent Acquiror contained in Section 5.05(a) Section 5.12 shall be true and correct, subject only to correct in all but de minimis exceptions, at and as of the date of this Agreement and at and respects as of the Closing Date as if though made at on and as of the Closing (orsuch date, if except with respect to such representations and warranties are given which speak as of another specific 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 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, in each case as of the Closing Date, except with respect to such representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof)which speak as to an earlier date, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 which representations and Section 5.23 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 Agreement or the Ancillary Agreements, (iii) the representation and at warranty of Acquiror contained in Section 5.10(a) shall be true and Section correct as of the Closing Date as if though made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at on and as of such date); , and (iiiiv) each of the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent Acquiror contained in this Agreement, Agreement other than the Acquiror Fundamental Representations and the representation and warranty set forth in Section 5.10(a) (disregarding all any qualifications and exceptions contained therein relating to materiality and material adverse effect or Parent Material Adverse Effectany similar qualification or exception) shall be true and correct as of the Closing Date as though made on and as of such 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 the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptexcept for, in the case of this clause (iv) onlyeach case, where the failure of such representations and warranties to be true and correct has inaccuracies or omissions that have not had had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectmaterial adverse effect on Acquiror or Acquiror’s ability to consummate the transactions contemplated 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) 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.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed (or any non-performance shall have been cured), in all material respects respects, all of its obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.215.06(b) ((x) other than the last sentence thereof and (y) solely with respect to the Major Subsidiaries of Parent), Section 5.22 5.20, Section 5.21 and Section 5.23 5.22 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); and (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv(iii) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(c) since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(d) both (i) the early termination or expiration of the waiting period required under the HSR Act shall have occurred, and (ii) the Company Required Governmental Authorizations and the Parent Required Governmental Authorizations set forth in Section 9.03(d) of the Company Disclosure Schedule, in each case in this clause (d), to the extent required under Applicable Law to consummate the transactions contemplated hereby at Closing, shall have been made or obtained, as applicable, and shall be in full force and effect; and
(e) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.03(a), Section 9.03(b) and Section 9.03(c).
Appears in 1 contract
Samples: Merger Agreement (Aetna Inc /Pa/)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable Law, written waiver by the Company) of the following further additional conditions:
(a) (i) each of Parent and Merger Sub shall have performed and complied with in all material respects all of its the covenants, obligations and agreements hereunder required to be performed or complied with by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing, (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent and Merger Sub contained in Section 5.05(aSection 5.01 (Corporate Existence and Power), Section 5.02 (Corporate Authorization), Section 5.08 (Finders’ Fees), Section 5.10 (Solvency) and the last sentence of Section 5.11 (Ownership of Common Shares), (disregarding, in each case, all materiality and Parent Material Adverse Effect qualifications contained therein) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and in all material respects at and as of the Closing as if made at and as of the Closing (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such datetime); , (iiiii) the other representations and warranties of Parent and Merger Sub contained in Section 5.01 this Agreement (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 disregarding all materiality and Section 5.23 Parent Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such datetime), except, with only such exceptions in the case of this clause (iviii) only, where the failure of such representations and warranties to be true and correct has as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;, and (iv) the Company shall have received a certificate signed by an executive officer of Parent on behalf of Parent to the effect that the conditions set forth in foregoing clauses (i) - (iii) have been satisfied.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) (i) each of Parent Parent, Intermediate Merger Subsidiary and Merger Sub Subsidiary shall have performed or complied with, in all material respects respects, all of its obligations obligations, covenants and agreements hereunder required to be performed or complied with by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent Parent, Intermediate Merger Subsidiary and Merger Subsidiary contained in Section 5.05(aSection 5.06(a) shall be true and correct, subject only to de minimis exceptions, at and correct in all respects as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such datetime); , (iiB) the representations and warranties of Parent Parent, Intermediate Merger Subsidiary and Merger Subsidiary contained in Section 5.01 (other than the third sentence thereof), Section Section 5.01(a) and Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such date); time) and (iiiC) the other representations and warranties of Parent Parent, Intermediate Merger Subsidiary and Merger Subsidiary contained in Section 5.09(a)(iiArticle 5 (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing; and such time (iv) the other than representations and warranties that by their terms address matters only as of Parent contained in this Agreementanother specified time, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, which shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and only as of such datetime), exceptwith, in the case of this clause (ivC) only, where the failure of only such representations and warranties to be true and correct has not had and exceptions as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;; and
(b) the Company shall have received from Parent a certificate dated as of the Closing date and signed by the chief executive officer or chief financial officer of the Parent, certifying that each of the conditions set forth in Section 9.03(a) have been satisfied.
Appears in 1 contract
Samples: Merger Agreement (Kraton Corp)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable applicable Law, waiver by waiver, on or prior to the Company) Closing, of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent set forth in (i) Section 4.1, Section 4.3, Section 4.4(b) and Section 4.7 that are (A) qualified as to materiality or Parent Material Adverse Effect and other qualifications based upon the concept of materiality or similar phrases contained in Section 5.05(a) therein shall be true and correctcorrect in all respects and (B) not qualified as to materiality or Parent Material Adverse Effect and other qualifications based upon the concept of materiality or similar phrases contained therein shall be true and correct in all material respects, subject only to de minimis exceptions, at in each case ((A) and (B)) as of the date of this Agreement and at and as of the Closing as if though made at and as of the Closing (or, if such except that representations and warranties are given that expressly speak specifically as of the date of this Agreement or another specific date, at date shall be so true and correct as of such date); , and (ii) the representations and warranties other provisions of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Article 4 shall be true and correct in all material respects at and (without giving effect to any qualification as to materiality or Parent Material Adverse Effect contained therein) as of the date of this Agreement and at and as of the Closing as if though made at and as of the Closing (or, if such except that representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and that expressly speak specifically as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, another date shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case except where any failures of this clause (iv) only, where the failure of any such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregateaggregate with all other Effects, a Parent Material Adverse Effect;
(b) Parent and Merger Sub shall each have performed and complied in all material respects with all obligations and covenants required to be performed and complied with by them at or prior to the Closing under this Agreement; and
(c) the Company shall have received at the Closing a certificate signed on behalf of Parent by a senior executive officer of Parent certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied.
Appears in 1 contract
Samples: Merger Agreement (Leaf Group Ltd.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(ai) each of Parent and Merger Sub Acquiror shall have performed in all material respects all of its their obligations hereunder required to be performed by it them at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent and Acquiror contained in Section 5.05(a) this Agreement that are qualified by reference to materiality or an Acquiror Material Adverse Effect shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement correct when made and at and as of the Closing Effective Time, as if made at and as of the Closing such time (or, if such provided that representations and warranties are given made as of another a specific date, at date shall be required to be true and correct as of such datedate only); , (iiB) the representations and warranties of the Parent contained and Acquiror set forth in Section 5.01 (other than the third sentence thereof)Section 5.1, Section 5.02Section 5.2, Section 5.04(i)Section 5.6, Section 5.21, Section 5.22 and Section 5.23 Section 5.8 that are not qualified by Acquiror Material Adverse Effect shall be have been true and correct in all material respects at and as of the date of this Agreement when made and at and as of the Closing time of the Effective Time, as if made as of such time (PROVIDED that representations made as of a specific date shall be required to be true and correct as of such date only), and (C) all other representations and warranties of Parent and Acquiror shall be true and correct when made and at and as of the Effective Time as if made at and as of the Closing such time (or, if such PROVIDED that representations and warranties are given made as of another a specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) date shall be required to be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such datedate only), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to havecorrect, individually or in the aggregate, does not have, and is not reasonably likely to have, an Acquiror Material Adverse Effect and (iii) the Company shall have received a certificate signed by the Chief Executive Officer or President of each of Parent and Acquiror to the foregoing effect; and
(b) Parent shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings identified on Schedule 9.2(b); PROVIDED, HOWEVER, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by the Company of any of its material covenants in this Agreement;
(c) since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, an Acquiror Material Adverse Effect;.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable Lawlegally permissible, waiver by the Companywaiver) of the following further conditions:
(a) each of (i) Parent and Merger Sub shall have performed in all material respects all of its obligations hereunder required to be performed by it at as of or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing Date, (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent contained and Merger Subsidiary set forth in Section 5.05(a) this Agreement which are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct, subject only to de minimis exceptions, correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing Date and (or, if such representations and warranties are given as of another specific date, at and as of such date); (iiB) the representations and warranties of Parent contained and Merger Subsidiary set forth in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties which are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or not qualified by a “Parent Material Adverse Effect, ” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as if though made at and as of the Closing (orDate, if except for such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties failures to be true and correct has not had and as would not not, in the aggregate, reasonably be expected to havehave a Parent Material Adverse Effect; provided, however, that, with respect to clauses (A) and (B) 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 or period;
(b) 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 Closing Date, 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. In rendering such opinion, such counsel shall be entitled to rely upon representations of officers of Parent, the Company or others reasonably requested by counsel; and
(c) since the date of this Agreement, there shall not have been any event, occurrence, development or state of circumstances which, individually or in the aggregate, would be reasonably likely to have a Parent Material Adverse Effect;.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate effect the Merger are Closing shall be further subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the CompanyCompany in its sole discretion, if permissible under applicable Law) on or prior to the Closing Date of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained the Investor (i) set forth in Section 5.05(a) Sections 4.01, the first three sentences of Section 4.02, the first sentence of Section 4.04 and in Section 4.06 shall be true and correctcorrect (disregarding all qualifications or limitations as to “materiality”, subject only to de minimis exceptions, at “Investor Material Adverse Effect” and words of similar import set forth therein) in all material respects as of the date of this Agreement and at and as of the Closing Date with the same effect as if though made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at on and as of such date (except to the extent expressly made as of an earlier date); , in which case as of such earlier date) and (ii) the representations and warranties of Parent contained set forth in Section 5.01 (this Agreement, other than in Sections 4.01, the third first three sentences of Section 4.02, the first sentence thereof)of Section 4.04 and in Section 4.06, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at (disregarding all qualifications or limitations as to “materiality”, “Investor Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and at and as of the Closing Date with the same effect as if though made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at on and as of such date); date (iii) except to the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and extent expressly made as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific an earlier date, at and in which case as of such earlier date), except, in the case of this clause (iv) onlyii), where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent an Investor Material Adverse Effect;
(b) the Investor shall have complied with or performed in all material respects its obligations required to be complied with or performed by it pursuant to this Agreement at or prior to the Closing; and
(c) the Company shall have received a certificate, signed on behalf of the Investor by a duly authorized officer thereof, certifying that, with respect to the Investor, the conditions set forth in Section 6.02(a) and Section 6.02(b) have been satisfied.
Appears in 1 contract
Samples: Subscription Agreement (James River Group Holdings, Ltd.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent Parent, Bidco and each Merger Sub shall have performed performed, in all material respects respects, all of its obligations hereunder required to be performed by it at or prior to the First Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(aSection 5.01, Section 5.02, Section 5.04(a) and Section 5.16 shall be true and correct, subject only to de minimis exceptions, correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Section 5.05(a) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuracies; (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiSection 5.10(b) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, Article V (disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, ) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(c) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.03(a) and Section 9.03(b); and
(d) the Company shall have received the opinion of Wachtell, Lipton, Rxxxx & Kxxx, or, if Wachtell, Lipton, Rxxxx & Kxxx is unable or unwilling to provide such opinion, Dxxxx Xxxx & Wxxxxxxx LLP (whichever such firm delivers such opinion, “Company Tax Counsel”), dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Mergers, taken together, will qualify (i) as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) for an exception to the general rule of Section 367(a)(1) of the Code. In rendering such opinion, Company Tax Counsel may rely on the Parent Tax Certificate, the Company Tax Certificate and such other information provided to it by Parent and/or the Company for purposes of rendering such opinion.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (or, at or prior to the extent permitted by Applicable LawClosing of the following additional conditions, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Acquiror Fundamental Representations shall be true and correct in all material respects at and as of the date of this Agreement and at and respects, in each case as of the Closing as if made at and as of the Closing (orDate, if except with respect to such representations and warranties are given which speak as of another specific to an earlier date, at and as of such date); (iii) the which representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and such date, (ivii) the other representations and warranties of Parent contained in this AgreementAcquiror made pursuant to Section 6.12(a), Section 6.12(b) and Section 6.12(c) (disregarding all any qualifications and exceptions contained therein relating to materiality materiality, material adverse effect or Parent Material Adverse Effectany 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, and (iv) 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 or any similar qualification or exception) shall be true and correct, 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 at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, except in the case of this clause (iv) onlyfor, where the failure of such representations and warranties to be true and correct has not had and in each case, inaccuracies or omissions that would not reasonably be expected to havenot, individually or in the aggregate, a Parent reasonably be expected to have an Acquiror Material Adverse 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;
Appears in 1 contract
Samples: Merger Agreement (ECP Environmental Growth Opportunities Corp.)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further additional conditions:
(a) (i) each of Parent and Merger Sub shall have performed and complied with in all material respects all of its the covenants, obligations and agreements hereunder required to be performed or complied with by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing, (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent and Merger Sub contained in Section Section 5.01(a) (Corporate Existence and Power), Section 5.02 (Corporate Authorization), Section 5.04(a) (Non-Contravention), Section 5.05(a) and (b) (Capitalization), Section 5.14 (Finders’ Fees), Section 5.17 (Solvency), and Section 5.19 (Takeover Statutes) that (A) are not qualified by Parent Material Adverse Effect or other materiality qualifiers shall be true and correct, subject only to correct in all respects (but for de minimis exceptions, at and as inaccuracies)as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (orin each case, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); time) and (iiB) the representations and warranties of are qualified by Parent contained in Section 5.01 (Material Adverse Effect or other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 materiality qualifiers shall be true and correct in all material respects at and as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (orin each case, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); time) without disregarding such Parent Material Adverse Effect or other materiality qualifiers qualifications, (iii) the representations and warranties of Parent the Company contained in Section 5.09(a)(iiSection 5.10(b) (Absence of Certain Changes) shall be true and correct in all respects at and as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing; and , (iv) the other representations and warranties of Parent and Merger Sub contained in this Agreement, Agreement (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Effect qualifications contained therein) shall be true and correct at and in all respects as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such datetime), except, with only such exceptions in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;, and (v) the Company shall have received a certificate signed by an executive officer of Parent to the effect that the conditions set forth in foregoing clauses (i) – (iv) and Section 9.03(b) have been satisfied.
(b) Since the date of this Agreement, no Parent Material Adverse Effect shall have occurred and be continuing.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger transactions contemplated by this Agreement are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditionsconditions on or before the Closing Date:
(a) each of Parent the representations and warranties set forth in Article 6 (other than the representations and warranties set forth in Sections 6.1, 6.2, 6.3(b)(i) and 6.6) shall be true and correct as of the Closing Date (except that such representations and warranties that are made as of a specific date need only be true and correct as of such date), except where the failure of any such representations and warranties to be so true and correct has not had, individually or in the aggregate, 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 true and correct in all respects as of the Closing Date;
(b) Purchaser and Merger Sub shall have performed in all material respects all of its obligations hereunder the covenants and agreements required to be performed by it at or each of them under this Agreement prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effectClosing;
(c) no law or order shall have been enacted or entered into after the date hereof that would prevent the consummation of the Merger;
(d) the Escrow Agreement shall have been duly executed by 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 Stockholders 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) Purchaser shall have delivered the Indemnification Escrow Amount, the Special Escrow Amount and the Merger Consideration Adjustment Escrow Amount to the Escrow Agent;
(g) Purchaser shall have delivered the amount of the Sellers’ Representative Expense Fund to the Sellers’ Representative pursuant to Section 8.7(e);
(h) Purchaser shall have paid, or caused to be repaid, the Repaid Indebtedness and all Sellers’ Transaction Expenses (to the extent not paid by the Company prior to the Closing); and
(i) on or prior to the representations and warranties of Parent contained in Section 5.05(a) Closing Date, Purchaser shall be true and correct, subject only have delivered to de minimis exceptions, at and as the Sellers’ Representative each of the date following:
(i) a certificate from an officer of this Agreement each of Purchaser and at and Merger Sub in substantially the form set forth as Exhibit E attached hereto, dated as of the Closing as if made at Date, stating that the applicable preconditions specified in Sections 3.1(a) and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date)b) have been satisfied; and
(ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as certified copies of the date resolutions duly adopted by the board of this Agreement directors (or equivalent governing bodies) of each of Purchaser and at Merger Sub authorizing the execution, delivery and as performance of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding the other agreements contemplated hereby, and the consummation of all qualifications transactions contemplated hereby and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall thereby. Any condition specified in this Section 3.1 may be true and correct at and as waived by the Sellers’ Representative on behalf of the date of this Agreement Sellers and at and as of the Closing as if made at and as of Company; provided, however, that no such waiver will be effective against the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, Sellers or the Company unless it is set forth in a writing executed by the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Sellers’ Representative.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further additional conditions:
: (ai) each of Parent and Merger Sub shall have performed and complied with in all material respects all of its the covenants, obligations and agreements hereunder required to be performed or complied with by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing, (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent and Merger Sub contained in Section 5.01(a) (Corporate Existence and Power), Section 5.05(a5.02 (Corporate Authorization), Section 5.04(a) (Non-Contravention), Section 5.08 (Finders’ Fees), and Section 5.10 (Solvency) that (A) are not qualified by Parent Material Adverse Effect or other materiality qualifiers shall be true and correct, subject only to correct in all respects (but for de minimis exceptions, at and inaccuracies) as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (orin each case, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); time) and (iiB) the representations and warranties of are qualified by Parent contained in Section 5.01 (Material Adverse Effect or other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 materiality qualifiers shall be true and correct in all material respects at and as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (orin each case, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); time) without disregarding such Parent Material Adverse Effect or other materiality qualifiers qualifications, (iii) the other representations and warranties of Parent and Merger Sub contained in Section 5.09(a)(iithis Agreement (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) shall be true and correct in all respects at and as of the date of this Agreement and at hereof and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing Date (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such datetime), except, with only such exceptions in the case of this clause (iviii) only, where the failure of such representations and warranties to be true and correct has as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;, and (iv) the Company shall have received a certificate signed by an executive officer of Parent to the effect that the conditions set forth in foregoing clauses (i) – (iii) have been satisfied.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(ai) each of Parent and Merger Sub Buyer 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing; (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent Buyer, Merger Subsidiary and the Holding Companies contained in Section 5.05(aSections 5.01, 5.02, 5.03, 5.04, 5.05, 5.06(a) and 5.08 of this Agreement (x) that are qualified by materiality, Buyer Material Adverse Effect or any similar qualification shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such date); time) and (iiy) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 that are not so qualified shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such datetime); (iii) the representations representation and warranties warranty of Parent Buyer contained in Section 5.09(a)(iiSection 5.06(b) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closingsuch time; and (iv) the other representations and warranties of Parent Buyer, Merger Subsidiary and the Holding Companies contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effectin any certificate or other writing delivered by Buyer or Merger Subsidiary pursuant hereto, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such datetime), exceptwith, in the case of this clause (iv) only, where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Buyer Material Adverse Effect;; and (v) the Company shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer, Chief Financial Officer or General Counsel of Buyer to the foregoing effect.
Appears in 1 contract
Samples: Merger Agreement (Amc Entertainment Holdings, Inc.)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Company Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent Acquiror contained in Section 5.05(a) Section 6.12 shall be true and correct, subject only to correct in all but de minimis exceptions, at and as of the date of this Agreement and at and respects as of the Closing as if made at and as of the Closing (orDate, if except with respect to such representations and warranties are given which speak as of another specific 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 Parent Acquiror contained in Section 5.01 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, in each case as of the third sentence thereof)Closing Date, Section 5.02except with respect to such representations and warranties which speak as to an earlier date, Section 5.04(i), Section 5.21, Section 5.22 which representations and Section 5.23 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 and at and which are contemplated or expressly permitted by this Agreement 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 (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 made at and as Acquiror, Merger Sub, Blocker Sub or any of the Closing Blocker Merger Subs, as applicable, has materially breached such material covenant and failed to cure within twenty (or20) days after written notice (or if earlier, if such representations the Agreement End Date);
(c) The Domestication shall have been completed as provided in Section 8.7 and warranties are given as a time-stamped copy of another specific date, at and as the certificate issued by the Secretary of such date)State of the State of Delaware in relation thereto shall have been delivered to the Company; and
(iiid) the representations and warranties of Parent contained in Section 5.09(a)(ii) The Remaining Trust Amount shall be true and correct in all respects at and as of equal to or greater than the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Minimum Remaining Trust Amount.
Appears in 1 contract
Samples: Merger Agreement (Aspirational Consumer Lifestyle Corp.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate effect the Merger transactions contemplated herein are also subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each Each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent CES contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orClosing, if such except that those representations and warranties are given which address matters only as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) a particular date shall be remain true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date. CES shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing.
(b) At or prior to the Closing, all filings necessary under federal and state securities laws to permit the issuance and delivery of the Shares in connection with the Agreement in compliance with such laws shall have been made, and any authorizations in connection therewith from all applicable securities regulatory authorities shall have been obtained.
(c) All conditions set forth in Sections 7.01 and 7.02 of the Merger Agreement shall have been satisfied except for (i) the conditions described in Section 7.01(e) and (ii) any condition set forth in such Sections 7.01 and 7.02 which is not satisfied due to a breach by the Company of any representation, warranty, covenant or obligation contained in any of the Transaction Documents (as defined in the Merger Agreement) to which the Company is a party.
(d) The Cinergy Gasco Purchase and Sale Agreement shall have been executed by all parties thereto, in substantially the form of Exhibit 7.01(e-2), exceptand all conditions to closing thereunder, in other than the case payment of this clause the "Purchase Price" (ivas defined therein) only, where pursuant to Section 8.4 therein shall have been satisfied or waived by the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;appropriate party thereunder.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction or waiver (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) (i) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereofSections 5.01, 5.02, 5.04(a), Section 5.025.05, Section 5.04(i5.06, 5.10(b), Section 5.21, Section 5.22 5.15 and Section 5.23 5.16 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true in all material respects only as of such datetime); , (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent and Merger Subsidiary contained in this Agreement, Agreement or in any certificate delivered by Parent or Merger Subsidiary pursuant hereto (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Effect qualifications contained therein) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such datetime), exceptwith, solely in the case of this clause (iv) onlyiii), where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, and (iv) the Company shall have received a certificate signed by an executive officer of Parent to the foregoing effect;
(b) The Company shall have received the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, in form and substance reasonably satisfactory to the Company, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Subsidiary and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code. In rendering the opinion described in this Section 9.03(b), Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP shall have received and may rely upon the Tax Representation Letters referred to in Section 8.06(b) hereof; and
(c) Since the date hereof, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had a Parent Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Xto Energy Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company, as the case may be) of the following further conditions:
(a) the representations and warranties of Purchaser contained in this agreement which are qualified as to materiality shall be true and correct and all such representations and warranties that are not qualified as to materiality shall be true and correct in all material respects, in each case when made and at and as of Parent the Closing Date as if made at and Merger Sub as of the Closing Date (except for those representations and warranties that address matters only 45 50 as of a particular date or only with respect to a specific period of time which need only be true and accurate as of such date or with respect to such period);
(b) Purchaser shall have performed in all material respects all of its the respective obligations hereunder required to be performed by it Purchaser, at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effectClosing Date;
(c) (i) the representations Purchaser shall have assumed and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and ratified effective as of the Closing Date, the obligations of the Company and TA Operating Corporation under those certain Employment Agreements with each of Edwix X. Xxxx, Xxmex X. Xxxxxx, Xxchxxx X. Xxxxxxxxxxx, xxd Timoxxx X. Xxxxx, xxch dated as if made at of January 1, 2000 and amended as of May 26, 2000 (collectively, the "KEY EXECUTIVE EMPLOYMENT AGREEMENTS") as in effect on the date hereof and attached hereto as SCHEDULE 7.03(c); and
(d) Purchaser shall have delivered to the Company certificates (dated as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereofDate), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct signed by an officer or officers with authority to bind Purchaser as to compliance with the conditions set forth in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing paragraphs (or, if such representations and warranties are given as of another specific date, at and as of such date); (iiia) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (ivb) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Section 7.03.
Appears in 1 contract
Samples: Recapitalization Agreement and Plan of Merger (Travelcenters of America Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate effect the Merger are Contemplated Transactions shall be subject to the satisfaction (or, on or prior to the extent permitted by Applicable Law, waiver Closing Date of each of the following conditions unless waived by the Company) of the following further conditions:
(a) each Each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained Purchaser set forth in Section 5.05(a) Section 4 that is not qualified by "materiality" or "Material Adverse Effect" shall be true and correct in all material respects, without regard to whether Purchaser has, had or hereafter acquires Knowledge that any such representation or warranty is not true or correct, subject only to de minimis exceptions, at as of the date hereof and as of the Closing Date, as though made again on the Closing Date (except to the extent such representations and warranties expressly relate to a specific date other than the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if in which case such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); provided, that no representation or warranty shall fail to be true and correct in all material respects for the purposes of this 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 by this Agreement; and (iiib) each of the representations and warranties set forth in Section 4 that is qualified by "materiality" or "Material Adverse 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 Parent contained the date hereof and as of the Closing Date, as though made again on the Closing Date (except to the extent such representations and warranties expressly relate to a specific date other than the date of this Agreement in Section 5.09(a)(ii) which case such representations and warranties shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); provided, except, in the case of this clause (iv) only, where the failure of such representations and warranties that no representation or warranty shall fail to be true and correct has not had and would not reasonably be expected to have, individually or for the purposes of this Section 6.2.1 solely as a result of changes in the aggregateBusiness, a Parent Material Adverse Effect;properties, assets or Liabilities of Purchaser which are expressly required, permitted or contemplated by this Agreement.
6.2.2. Purchaser shall have performed in all material respects all covenants and agreements required to be performed by Purchaser under this Agreement at or prior to the Closing Date.
6.2.3. Purchaser shall have delivered or caused to be delivered (and if applicable, shall execute or cause to be executed) the documents, certificates and instruments required to be delivered or caused to be delivered by Purchaser at the Closing pursuant to Section 7.2.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further additional conditions:
(a) (i) each of Parent and Merger Sub shall have performed and complied with in all material respects all of its the covenants, obligations and agreements hereunder required to be performed or complied with by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing, (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent and Merger Sub contained in Section 5.05(a5.01(a) (Corporate Existence and Power), Section 5.02 (Corporate Authorization), Section 5.04(a) (Non-Contravention), Section 5.05(a) and (b) (Capitalization), Section 5.14 (Finders’ Fees), Section 5.17 (Solvency), and Section 5.19 (Takeover Statutes) that (A) are not qualified by Parent Material Adverse Effect or other materiality qualifiers shall be true and correct, subject only to correct in all respects (but for de minimis exceptions, at and as inaccuracies)as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (orin each case, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); time) and (iiB) the representations and warranties of are qualified by Parent contained in Section 5.01 (Material Adverse Effect or other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 materiality qualifiers shall be true and correct in all material respects at and as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (orin each case, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); time) without disregarding such Parent Material Adverse Effect or other materiality qualifiers qualifications, (iii) the representations and warranties of Parent the Company contained in Section 5.09(a)(ii5.10(b) (Absence of Certain Changes) shall be true and correct in all respects at and as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing; and , (iv) the other representations and warranties of Parent and Merger Sub contained in this Agreement, Agreement (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Effect qualifications contained therein) shall be true and correct at and in all respects as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such datetime), except, with only such exceptions in the case of this clause (iv(iv) only, where the failure of such representations and warranties to be true and correct has as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;, and (v) the Company shall have received a certificate signed by an executive officer of Parent to the effect that the conditions set forth in foregoing clauses (i) – (iv) and Section 9.03(b) have been satisfied.
(b) Since the date of this Agreement, no Parent Material Adverse Effect shall have occurred and be continuing.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are transactions contemplated by this Agreement shall be subject to the satisfaction (orfulfillment at or prior to the Closing of each of the following conditions, any and all of which may be waived in whole or in part by the Company to the extent permitted by Applicable Law, waiver by the Company) of the following further conditionsapplicable law:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained and Newco set forth in Section 5.05(a) the first sentence of Section 5.1 and in Section 5.2 and any representations and warranties of Parent and Newco set forth in this Agreement that are qualified as to materiality shall be true and correctcorrect in all respects, subject only to de minimis exceptionsand all other representations and warranties of Parent and Newco set forth in this Agreement shall be true and correct in all material respects, at and in each case as of the date of this Agreement and at and as of the Closing as if though made at and as of the Closing (orClosing, if except to the extent such representations and warranties are given specifically made as of another specific date, at a particular date (in which case such representations and warranties shall be true and correct as of such date); ;
(b) each of Parent and Newco shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing;
(c) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction could (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the representations transactions contemplated by this Agreement to be rescinded following consummation, and warranties no such judgment, order, decree, stipulation or injunction shall be in effect;
(d) Parent shall have delivered to the Company the Parent Certificate; and
(e) the Company shall have received such other certificates and instruments (including certificates of existence or good standing of Parent contained and Newco in Section 5.01 (other than their jurisdictions of organization, certified charter documents, certificates as to the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 incumbency of officers and Section 5.23 the adoption of authorizing resolutions) as it shall be true and correct reasonably request in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of connection with the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent Representations and Merger Sub 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;Warranties.
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) Each of the representations and warranties of Parent LIVK contained in 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 5.05(a6.01 (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, subject only to de minimis exceptions, at and correct as of the date of this Agreement and at and as of the Closing Date, as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, anew at and as of such date); (ii) the , except with respect to representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof)which speak as to an earlier date, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such which representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptexcept for, in the case of this clause (iv) onlyeach case, where the failure of such representations and warranties failures to be true and correct has not had and as would not reasonably be expected to have, individually or in the aggregate, a Parent LIVK Material Adverse Effect;.
(ii) The representations and warranties of LIVK contained in Section 6.14(b) (Absence of Changes (No LIVK Material Adverse Effect)) shall be true and correct as of the date of this Agreement and as of the Closing Date, as if made anew at and as of such date.
(iii) Each of the representations and warranties of 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 true and correct in all respects except for de minimis inaccuracies as of the date of this Agreement and as of Closing Date, as if made anew at and as of such date (except to the extent that any such representation and warranty speaks expressly as of an earlier date, in which case such representation and warranty shall be true and correct in all respects except for de minimis inaccuracies as of such earlier date).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate issue, sell and deliver the Merger Shares to the Investors are subject to the satisfaction (or, to fulfillment or waiver on or before the extent permitted by Applicable Law, waiver by the Company) Closing of each of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained the Investors in Section 5.05(a) this Agreement shall be true and correct, subject only correct (disregarding all qualifications or limitations as to de minimis exceptions, at and materiality) as of the date of this Agreement and at hereof and as of the Closing as if made at Date (except to the extent that any such representation and warranty expressly speaks as of the Closing (or, if such representations and warranties are given as of another specific an earlier date, at in which case such representation and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 warranty shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such earlier date), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent 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 Company shall have obtained the Shareholder Approval;
(f) the Shares to be issued to the Investors at Closing and the shares of Common Stock issued as part of the Rights Offering will represent, upon issuance and on an as-if converted basis, not more than 46.6% of the shares of Common Stock outstanding after giving effect to the issuance of the Shares and the issuance of the shares of Common Stock as part of the Rights Offering, such 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 Credit Agreement Amendment shall have become effective or will become effective immediately after Closing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ruths Hospitality Group, Inc.)
Conditions to the Obligations of the Company. The obligations of the Company to consummate consummate, or cause to be consummated, the First Merger are subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent contained Buyer and Merger Subs in Section 5.05(athis Agreement (other than the Fundamental Representations of Buyer) shall be true and correctcorrect (without giving regard to any qualifications or limitations as to “materiality” or “Material Adverse Effect”, subject only to de minimis exceptions, at and words of similar import set forth therein) in all respects as of the date of this Agreement and at and as of the Closing with the same effect as if though made at and as of such time, except where the Closing (or, if such representations failure to be true and warranties are given as of another specific date, at correct would not reasonably be expected to have a Material Adverse Effect on Buyer and as of such date); (ii) the representations and warranties Fundamental Representations of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall Buyer will be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing with the same effect as if though made at and as of the Closing (orsuch time; provided, if such however, that representations and warranties that are given made as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall a particular date or period will be true and correct (in the manner set forth above) only as of such date or period.
(b) Each of the covenants of Buyer and Merger Subs to be performed at or prior to the Closing shall have been performed in all respects at and as material respects.
(c) Bxxxx shall have delivered to the Company a certificate signed by an officer of the date of this Agreement and at and Buyer, dated as of the Closing as if made at Date, certifying that the conditions specified in Section 9.2(a) and as Section 9.2(b) have been fulfilled (the “Buyer Closing Certificate”).
(d) Bxxxx shall have delivered a duly executed counterpart to the CVR Agreement to the other parties thereto.
(e) No Governmental Authority of competent jurisdiction shall have 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 Closing; Merger, and (iv) there shall not be any threatened, instituted or pending action by a Governmental Authority seeking to prohibit, restrain or enjoin the consummation of the Merger or other representations and warranties of Parent contained in transactions under this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed (or any non-performance shall have been cured), in all material respects respects, all of its obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section Section 5.01 (other than the third sentence thereof), Section Section 5.02, Section Section 5.04(i), Section 5.21Section 5.06(b) ((x) other than the last sentence thereof and (y) solely with respect to the Major Subsidiaries of Parent), Section Section 5.20, Section 5.21 and Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); and (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iviii) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(c) since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(d) both (i) the early termination or expiration of the waiting period required under the HSR Act shall have occurred, and (ii) the Company Required Governmental Authorizations and the Parent Required Governmental Authorizations set forth in Section 9.03(d) of the Company Disclosure Schedule, in each case in this clause (d), to the extent required under Applicable Law to consummate the transactions contemplated hereby at Closing, shall have been made or obtained, as applicable, and shall be in full force and effect; and
(e) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.03(a), Section 9.03(b) and Section 9.03(c).
Appears in 1 contract
Samples: Merger Agreement (CVS HEALTH Corp)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent Acquiror contained in Section 5.05(a) Section 5.11 shall be true and correct, subject only to correct in all but de minimis exceptions, at and as of the date of this Agreement and at and respects as of the Closing as if made at and as of the Closing (orDate, if except with respect to such representations and warranties are given which speak as of another specific 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, (ii) the Acquiror Fundamental Representations (other than Section 5.11) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof)which speak as to an earlier date, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 which representations and Section 5.23 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 or the Ancillary Agreements and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) each of the representations and warranties of Parent Acquiror contained in Section 5.09(a)(iithis Agreement (other than the Acquiror Fundamental Representations) (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 at and as of the date of this Agreement and at and material respects, in each case as of the Closing as if made at and as of the Closing; and (iv) the other Date, except with respect to such representations and warranties of Parent contained in this Agreementwhich speak as to an earlier date, disregarding all qualifications which representations and exceptions contained therein relating to materiality or Parent Material Adverse Effect, warranties shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, in all material respects at and as of such date), except, in except for changes after the case date of this clause Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements;
(ivb) only, where Each of the failure covenants of such representations and warranties Acquiror to be true performed as of or prior to the Closing shall have been performed in all material respects;
(c) The Domestication shall have been completed as provided in Section 7.5 and correct has not had and would not reasonably be expected 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 havethe Company; and
(d) The documentation referred to in Section 2.5(b) shall have been delivered to the Company or the Exchange Agent, individually or in the aggregate, a Parent Material Adverse Effect;as applicable.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(a) each of Parent the representations and Merger Sub warranties of Newco in this Agreement, and each of the representations and warranties of every party to the Subscription Agreement, shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be so true and correct in all respects only as of such particular date or with respect to such specific period), except for de minimis inaccuracies;
(b) Newco shall have performed in all material respects all of its obligations hereunder and each of the parties to the Subscription Agreement shall have performed in all material respects its obligations thereunder, in each case as required to be performed by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under Closing and including the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be actions described in full force and effectSection 1.2;
(c) the Company shall have received a certificate signed by an authorized officer of Newco, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 5.3(a) and Section 5.3(b) have been satisfied;
(id) the representations and warranties transactions contemplated by the Subscription Agreement shall have been consummated without waiver of Parent contained in Section 5.05(aany conditions thereto;
(e) shall be true and correct, subject only to de minimis exceptions, at and as of since the date of this Agreement and at and as of the Closing as if made at and as of the Closing Agreement, there shall not have occurred any Newco Material Adverse Effect; and
(or, if such representations and warranties are given as of another specific date, at and as of such date); (iif) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of following the date of this Agreement and at and Agreement, except (i) as required by Law or (ii) with the prior written consent of the Closing as if made at Company, which consent shall not be unreasonably withheld, delayed or conditioned, MAST and as the Funds shall have managed the MAST Portfolio Assets in the ordinary course consistent with past practice and without limiting the generality of the Closing foregoing none of MAST or the Funds shall have subjected any of the MAST Portfolio Assets to any Encumbrance that would prohibit the transfer of such asset to Newco under the Subscription Agreement. For the avoidance of doubt, the Funds shall have promptly provided the Company notice in the event that any of them (orA) agreed to any modification of or waiver or forbearance under any MAST Portfolio Loan Document, or waived or failed to enforce any material right under any MAST Portfolio Loan Document or (B) consented to any release of collateral relating to any MAST Portfolio Asset. During the period from the Measurement Date to the earlier of the Effective Time and the date, if such representations and warranties are given any, on which this Agreement is terminated pursuant to Section 6.1, neither MAST nor any of the Funds shall have executed any trade with respect to any MAST Portfolio Asset except (i) as may be required by Law, (ii) with the prior written consent of another specific datethe Company, at and as of such date); which consent shall not be unreasonably withheld, delayed or conditioned, or (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in required by this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent Acquiror contained in Section 5.05(a) Section 5.12 shall be true and correct, subject only to correct in all but de minimis exceptions, at and respects as of as of the date of this Agreement and at and as of the Closing Date as if made at and as of on the Closing (orDate, if except with respect to such representations and warranties are given which speak as of another specific 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 Parent Acquiror contained in Section 5.01 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, in each case as of the third sentence thereof)Closing Date, Section 5.02except with respect to such representations and warranties which speak as to an earlier date, Section 5.04(i), Section 5.21, Section 5.22 which representations and Section 5.23 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 and at and which are contemplated or expressly permitted by this Agreement or the Ancillary 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) The Domestication shall have been completed as if made at provided in Section 7.7 and as a time-stamped copy of the Closing certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company;
(or, if such representations and warranties are given as d) The amount of another specific date, at and as cash available in the Trust Account following the Acquiror Shareholders’ Meeting (net of such dateany redemptions); (iii) plus the representations and warranties of Parent contained in Section 5.09(a)(ii) PIPE Investment Amount actually received by the Acquiror substantially concurrently with the Closing shall be true and correct in all respects at and as of equal to or greater than $175,000,000; and
(e) Since the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent there shall not have occurred an Acquiror Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Effect that is continuing.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(a) each the representations and warranties of Parent and Merger Sub shall have been true and accurate both when made and (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, and is not likely to 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 5.2 and 5.3 shall be true and correct in all respects;
(b) Each of Parent and Sub shall have performed in all material respects all of its the respective obligations hereunder required to be performed by it Parent or Sub, as the case may be, at or prior to the Effective Time;
(bc) both (i) any applicable waiting period or periods under the HSR Act The Company shall have expired or been terminated and (ii) received an opinion of Xxxxxx Xxxxxxxx LLP, counsel to the Company Condition Regulatory Approvals shall have been made or obtainedCompany, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and dated as of the date of this Agreement and at and as Effective Time, to the effect that the Merger (taking into account the effect of the Closing Upstream Merger, if applicable) will qualify as if made at and as a reorganization within the meaning of Section 368(a) of the Closing (or, if such representations and warranties are given as of another specific date, at and as Code. The issuance of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 opinion shall be true conditioned upon the receipt by such counsel of customary representation letters from each of Parent, Sub and correct the Company, in all material respects at each case, in form and as of substance reasonably satisfactory to such counsel. 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. The opinion condition referred to in this Agreement and at and as Section 7.3(c) shall not be waivable after receipt of the Closing as if made at and as of stockholder approval referred to in Section 7.1(b), unless further stockholder approval is obtained with appropriate disclosure; and
(d) Parent shall have furnished the Company with a certificate dated the Closing (or, if such representations and warranties are given as Date signed on behalf of another specific date, at and as of such date); (iiiit by the President or any Vice President to the effect that the conditions set forth in Sections 7.3(a) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (ivb) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;have been satisfied.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made made, obtained or obtainedreceived (or the waiting periods with respect thereto as set forth in Section 9.03(b) of the Company Disclosure Schedule shall have expired or been terminated), as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section Section 5.01 (other than the third sentence thereof), Section Section 5.02, Section Section 5.04(i), Section 5.21Section 5.26, Section 5.22 Section 5.27 and Section 5.23 Section 5.28 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiSection 5.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the ClosingClosing (or, if such representations and warranties are given as of another specific date, at and as of such date); and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(d) since the date of this Agreement, there shall not have occurred any vent, circumstance, development, change, occurrence or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; and
(e) the Company shall have received a certificate signed by an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.03(a), Section 9.03(c) and Section 9.03(d).
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further additional conditions:
: (a) each of Parent and Merger Sub shall have performed and complied with in all material respects all of its the covenants, obligations and agreements hereunder required to be performed or complied with by it at or prior to the Effective Time;
Closing, (b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent and Merger Sub contained in Section 5.01 (Corporate Existence and Power), Section 5.05(a5.02 (Corporate Authorization), Section 5.04(a) (Non-Contravention), Section 5.08 (Finders’ Fees) and Section 5.10 (Solvency) that (i) are not qualified by Parent Material Adverse Effect or other materiality qualifiers shall be true and correct, subject only to correct in all respects (but for de minimis exceptions, at and inaccuracies) as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (orin each case, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); time) and (ii) the representations and warranties of are qualified by Parent contained in Section 5.01 (Material Adverse Effect or other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 materiality qualifiers shall be true and correct in all material respects at and as of the date of this Agreement and at hereof and as of the Closing Date as if made at and as of the Closing Date (orin each case, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such date); time) without disregarding such Parent Material Adverse Effect or other materiality qualifiers qualifications, (iiic) the other representations and warranties of Parent and Merger Sub contained in Section 5.09(a)(iithis Agreement (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) shall be true and correct in all respects at and as of the date of this Agreement and at hereof and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing Date (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such datetime), except, with only such exceptions in the case of this clause (ivc) only, where the failure of such representations and warranties to be true and correct has as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;, and (d) the Company shall have received a certificate signed by an executive officer of Parent to the effect that the conditions set forth in foregoing clauses (a) – (c) have been satisfied.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate consummate, or cause to be consummated, the Merger are subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each Each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of the Parent contained Parties set forth in Section 5.05(aSections 5.1 (Organization), 5.2 (Due Authorization), 5.3 (No Conflict), 5.5 (Capitalization), 5.6 (Subsidiaries), 5.11 (Brokers’ Fees) and 5.15 (Parent Vote Required) shall be true and correctcorrect in all respects, subject only to except for inaccuracies that are de minimis exceptionsin amount and effect, as of the Closing Date, as if made anew at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orthat date, if such except with respect to representations and warranties are given that speak only as of another specific to an earlier date, at and as of such date); (ii) the which representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date such earlier date. Each of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Parent Parties contained in this AgreementArticle V (other than those specifically identified in the immediately preceding sentence), disregarding all qualifications and exceptions contained therein relating to materiality or materiality, Parent Material Adverse EffectEffect (other than in the case of Section 5.8) or words of similar import, shall be true and correct as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties that speak only as to an earlier date, which representations and warranties shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific earlier date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and except for any inaccuracies or omissions that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect;.
(b) Each of the covenants of the Parent Parties to be performed at or prior to the Closing shall have been performed in all material respects.
(c) Since the date of this Agreement, there shall not have occurred a Parent Material Adverse Effect.
(d) Parent shall have delivered to the Company a certificate signed by an officer of Parent, dated as of the Closing Date, certifying that the conditions specified in Section 7.3(a), Section 7.3(b) and Section 7.3(c) have been fulfilled.
(e) The shares of Parent Common Stock to be issued to the Pre-Closing Holders shall have been approved for listing on NASDAQ or NYSE upon issuance, subject only to official notification thereof.
(f) The amount of Cash Consideration available for payment to the Pre-Closing Holders from Parent, the Company and/or its Subsidiaries from any source (including the Trust Account and any Supplemental Financing), shall be at least $50,000,000.
(g) As of a moment in time prior to the Closing, Parent shall not have indebtedness for borrowed money that exceeds $5,000,000.
(h) The Company shall have delivered to Parent the PCAOB Financial Statements in a form reasonably acceptable to Parent, which PCAOB Financial Statements shall not contain any material deviations (as determined in good faith by Parent) from the corresponding financial information for the respective periods presented in the Financial Statements.
(i) The Parent Parties shall have delivered (or cause to have been delivered) each of the Closing deliverables to be delivered by it pursuant to Section 2.4 other than any payments to be made pursuant thereto, which payments shall be made at the Closing.
(j) The Restructuring shall have been consummated.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each (i) The representations and warranties of Parent Acquiror and Merger Sub contained in Section 5.1, Section 5.2, Section 5.3(a), Section 5.3(b), Section 5.12 and Section 5.13 shall have performed be true and correct in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orDate, if except with respect to such representations and warranties are given that speak as of another specific an earlier date, which representations and warranties shall be true in all material respects at and as of such date); , and (ii) each of the representations and warranties of Parent Acquiror contained in Section 5.01 this Agreement (other than 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, in each case as of the third sentence thereof)Closing Date, Section 5.02except with respect to such representations and warranties which speak as to an earlier date, Section 5.04(i), Section 5.21, Section 5.22 which representations and Section 5.23 warranties shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained except for in Section 5.09(a)(ii) shall be true and correct each case in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) onlyii), where the failure of such representations and warranties to be true and correct has inaccuracies or omissions that have not had had, and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effectmaterial adverse effect on Acquiror;
(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) The certificate of incorporation of Acquiror and bylaws of Acquiror shall have been amended and restated to be substantially in the forms of Exhibit A and Exhibit B, respectively, attached hereto;
(d) Acquiror shall have delivered, or caused to be delivered, to the Company the documents set forth in Section 2.4(b); and
(e) (i) The amount of cash available in the Trust Account following the Acquiror Stockholders’ Meeting, after deducting (x) the amount required to satisfy the Acquiror Stockholder Redemption Amount, (y) any Company Transaction Expenses or Acquiror Transaction Expenses, as contemplated by Section 11.6 and (z) any amounts outstanding under any Working Capital Loans, plus (ii) the PIPE Investment Amount actually received by Acquiror prior to or substantially concurrently with the Closing, plus (iii) the aggregate amount of cash that has been funded to and remains with Acquiror pursuant to the Forward Purchase Agreement, as applicable, shall be equal to or greater than $400,000,000.
Appears in 1 contract
Samples: Merger Agreement (Khosla Ventures Acquisition Co. II)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, to the extent permitted by Applicable Law, written waiver by the Company) of the following further additional conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent and Merger Sub contained in Section 5.01 (Corporate Existence and Power), Section 5.02 (Corporate Authorization), Section 5.04(a) (Non-Contravention) and Section 5.05(a5.07 (Finders’ Fees) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and in all material respects as of the Closing Date (other than any such representations and warranties qualified by materiality or Parent Material Adverse Effect qualifications, which shall be true in all respects) as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such datetime); , (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent and Merger Sub contained in this Agreement, Agreement (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Effect qualifications contained therein) shall be true and correct at and as of the date of this Agreement and at and in all respects as of the Closing Date as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such datetime), except, with only such exceptions in the case of this clause (iv(ii) only, where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;, and (iii) the Company shall have received a certificate signed by an executive officer of Parent on behalf of Parent to the effect that the conditions set forth in foregoing clauses (i) - (ii) and Section 9.03(b) have been satisfied.
(b) Parent and Merger Sub shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them at or prior to the Effective Time.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate effect the Merger are Closing shall be subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each The representations of Parent the Investor in Section 1.1(b) shall be true and Merger Sub correct (A) in the case of the Registration Statement and any post-effective amendments thereto, at the respective times referred to in Section 1.1(c), and in the case of the Prospectus, as of its date, and (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 Investor contained in this Agreement (i) that are qualified by materiality, Material Adverse Effect or words of similar import, shall be true and correct 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, in which case such representation and 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 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, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date).
(b) The Investor shall have performed in all material respects all of its obligations hereunder required to be performed by it, and complied with the covenants hereunder applicable to it in all material respects, at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;Closing.
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) The Company shall be true and correcthave received a certificate, subject only to de minimis exceptions, at and as signed by an officer of the date of this Agreement and at and Investor, certifying as of to the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iimatters set forth in Section 5.2(a) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such dateb), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are transactions contemplated by this Agreement is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each Each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent Acquiror and Merger Sub contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and (except with respect to any representation or warranty qualified as to materiality or words of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orsimilar import, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall which must be true and correct in all respects at and respects) as of the date of this Agreement and at and as of the Closing as if made at hereof and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct as if made anew at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orthat time, if such except with respect to representations and warranties are given which speak as of another specific to an earlier date, which representations and warranties shall be at and as of such date), exceptdate and, in the case of this clause (iv) onlyeach case, where the failure of such representations and warranties to be true and correct has not had and except for inaccuracies or omissions that would not reasonably be expected to havehave a material adverse effect on the business, individually operations or financial condition of Parent and its Subsidiaries, taken as a whole.
(b) Each of the covenants and agreements of Acquiror or Merger Sub to be performed as of or prior to the Closing shall have been performed in all material respects, except in each case for changes after the aggregatedate hereof which are contemplated or expressly permitted by this Agreement.
(c) Acquiror shall have delivered to the Company a certificate signed by an officer of Acquiror, dated the Closing, certifying that the conditions specified in Section 9.1 (as they relate to Acquiror and Merger Sub) and Section 9.3(a) and 9.3(b) have been fulfilled.
(d) Acquiror, on behalf of the Surviving Corporation, shall have delivered a Parent Material Adverse Effect;release of all claims against Relizon and its Subsidiaries arising prior to the Closing (other than any claims relating to (i) this Agreement or the transactions contemplated hereby or (ii) the Excluded Business.
(e) Acquiror and Merger Sub shall have executed and delivered to Holdings the Escrow Agreement.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent Parent, Merger Sub 1 and Merger Sub 2 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Closing Condition Regulatory Approvals shall have been made made, obtained or obtainedreceived (or the waiting periods with respect thereto shall have expired or been terminated), as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section Section 5.01 (other than the third sentence thereof), Section Section 5.02, Section Section 5.04(i), Section 5.21Section 5.16, Section 5.22 Section 5.17 and Section 5.23 Section 5.18 which (A) are not qualified by a materiality or Parent Material Adverse Effect qualification or exception, shall be true and correct in all material respects and (B) are qualified by a materiality or Parent Material Adverse Effect qualification or exception, shall be true and correct in all respects, in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiSection 5.10(b) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the ClosingClosing (or, if such representations and warranties are given as of another specific date, at and as of such date); and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(d) since the date of this Agreement, there shall not have occurred any event, circumstance, development, change, occurrence or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(e) the Company shall have received a certificate signed by an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.03(a), Section 9.03(c) and Section 9.03(d); and
(f) the Company shall have received the opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Company, to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, the Mergers, taken together as an integrated transaction, will be treated for United States federal income tax purposes as a “reorganization” within the meaning of Section 368(a) of the Code, which opinion will be dated the Closing Date; provided that if Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP does not render such opinion for any reason, this condition shall nonetheless be deemed satisfied if a third party nationally recognized law or accounting firm as reasonably agreed to by Parent and the Company renders such opinion to the Company. In rendering such opinion, such counsel may require and will be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the tax representation letters described in Section 8.10.
Appears in 1 contract
Samples: Merger Agreement (Eaton Vance Corp)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the First Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) Each of the representations and warranties of Parent Acquiror contained in Section 5.05(aSections 5.1, 5.2, 5.3, 5.9, 5.14 (the “Acquiror Fundamental Representations”) of this Agreement shall be true and correctcorrect in all material respects, subject only to except for Section 5.9, which shall be true and correct in all but de minimis exceptionsrespects, in each case as of the Closing Date, as if made anew at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orthat time, if except with respect to such representations and warranties are given which speak as of another specific to an earlier date, at and as of such date); (ii) the which representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 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 (ii) each of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent Acquiror contained in this Agreement, Agreement other than the Acquiror Fundamental Representations (disregarding all any qualifications and exceptions contained therein relating to materiality or Parent materiality, material adverse effect and Acquiror Material Adverse EffectEffect 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 the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptexcept for, in the case of this clause each case, (ivx) only, where the failure of such representations and warranties to be true and correct has not had and inaccuracies or omissions that would not reasonably be expected to havenot, 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 Parent 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 directors designated pursuant to Section 7.9 shall have been appointed in accordance with the DGCL and the Acquiror Governing Documents to serve on the Acquiror Board effective as of the First Effective Time; and
(g) 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 in respect of all or a portion of the 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 obligations of the Company to consummate the Merger are subject to the satisfaction or waiver (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) (i) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereofSections 5.01, 5.02, 5.04(a), Section 5.025.05, Section 5.04(i5.06, 5.10(b), Section 5.21, Section 5.22 5.15 and Section 5.23 5.16 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true in all material respects only as of such datetime); , (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent and Merger Subsidiary contained in this Agreement, Agreement or in any certificate delivered by Parent or Merger Subsidiary pursuant hereto (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Effect qualifications contained therein) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such datetime), exceptwith, solely in the case of this clause (iv) onlyiii), where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, and (iv) the Company shall have received a certificate signed by an executive officer of Parent to the foregoing effect;
(b) The Company shall have received the opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel to the Company, in form and substance reasonably satisfactory to the Company, dated the Closing Date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Merger Subsidiary and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code. In rendering the opinion described in this Section 9.03(b), Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP shall have received and may rely upon the Tax Representation Letters referred to in Section 8.06(b) hereof; and
(c) Since the date hereof, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had a Parent Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Exxon Mobil Corp)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are and the Recapitalization is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:conditions (which may be waived in whole or in part by the Company, unless such waiver is prohibited by law):
(ai) each Each of Parent Holdings and Merger Sub FDESI shall have performed performed, in all material respects respects, all of its obligations hereunder required to be performed by it at or prior to the Effective TimeClosing; (ii) each of the representations and warranties of Holdings and FDESI contained in this Agreement shall be true in all material respects as of the date hereof and at and as of the Closing (except to the extent such representations and warranties are expressly made as of an earlier date) as if made at and as of such time; and (iii) the Company shall have received a certificate signed by an officer of Holdings to the foregoing effect;
(b) both The Agreement of Merger shall have been submitted to the California Secretary of State for filing in accordance with the California Code;
(c) FDESI shall have made the FDESI Deposit with the Exchange Agent and furnished the Company evidence, reasonably satisfactory to the Company, thereof and evidence, reasonably satisfactory to the Company, of the Transfer Authorization;
(d) Holdings shall have furnished the Company with:
(i) any applicable waiting period a certified copy of a resolution or periods under resolutions duly adopted by the HSR Act shall have expired or been terminated Board of Directors of Holdings approving this Agreement, the Option Agreement and the Marketing Agreement, and the transactions contemplated hereby and thereby;
(ii) a certified copy of a resolution or resolutions duly adopted by the Company Condition Regulatory Approvals Board of Directors and sole stockholder of FDESI approving this Agreement; and
(iii) a favorable opinion of Lawrence N. Fisher counsel fxx Xxxxxxxx, xxxxx the Closing Date with respect to the matters set forth in Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.8 and 4.10;
(e) from the FDESI Balance Sheet Date to the Closing Date there shall have been made no FDESI Material Adverse Change;
(f) No action or obtainedproceeding before any court or governmental or regulatory authority or body, as applicableUnited States federal or state or foreign, shall have been constituted (and be pending) or threatened, by any government or governmental authority, that seeks, or threatens to seek, to prevent or delay the consummation of the Transactions or that challenges any of the terms or provisions of this Agreement;
(g) No order, judgment or decree issued by any United States federal or state or foreign governmental or regulatory authority or body, or by any court of competent jurisdiction nor any statute, rule, regulation or executive order promulgated or enacted by any United States federal or state or foreign government or governmental authority that (i) prevents the consummation of the Transactions; (ii) prohibits Holdings at any time after the Closing from exercising all material rights and privileges pertaining to its ownership of the stock of the Surviving Corporation; or (iii) materially and adversely affects the condition (financial or otherwise), properties, assets, earnings, business or operations of FDESI, shall be in effect; and
(h) The Marketing Agreement shall have been executed and delivered by Holdings and shall be in full force and effect;effect to the extent set forth therein.
(c) (i) The Company shall have received the representations and warranties additional opinion of Parent contained Donaldson, Luftkin & Jenrette rxxxxxxxxx in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Section 0.0.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub shall have performed in all material respects all each of its their obligations hereunder under this Agreement required to be performed by it them at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained and Merger Sub set forth in Section 5.05(aSections 5.01, 5.02, 5.04(a) and 5.06 of this Agreement shall be true and correct, subject only to de minimis exceptions, at and correct in all material respects as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing (orextent any such representation or warranty expressly relates to an earlier date or period, if such representations and warranties are given as of another specific date, at and in which case as of such datedate or period); (ii) the representations and warranties of Parent contained set forth in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Section 5.05 of this Agreement shall be true and correct in all material respects at and (except for de minimis inaccuracies) as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing (orextent any such representation or warranty expressly relates to an earlier date or period, if such representations and warranties are given as of another specific date, at and in which case as of such datedate or period); (iii) the representations representation and warranties warranty of Parent contained set forth in Section 5.09(a)(ii) Section 5.12 of this Agreement shall be true and correct in all respects at as of the date of the Agreement; and (iv) the representations and warranties of Parent set forth in this Agreement (other than those referred to in the preceding clauses (i)-(iii)) shall be true and correct as of the date of this Agreement and at and as of the Closing as if made at and as of Effective Time (except to the Closing; and (iv) the other representations and warranties of Parent contained extent any such representation or warranty expressly relates to an earlier date or period, in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and which case as of such datedate or period), except, in the case of this clause (iv) only, except where the failure of such representations and warranties to be so true and correct has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, in the case of clauses (i), (ii) and (iv) disregarding for this purpose all “Parent Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties;
(c) 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 Parent dated as of the Closing Date certifying that the conditions specified in paragraphs (a), (b) and (c) of this Section 9.03 have been satisfied.
Appears in 1 contract
Samples: Merger Agreement (Exxon Mobil Corp)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of the Parent Entities contained in Section 5.05(athe first sentence of Section 5.01, and Sections 5.02, Section 5.04(a), Section 5.05(b) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third second sentence thereofthereof (other than clause (iv) of the second sentence)), Section 5.02, Section 5.04(iSection 5.05(c) (other than the second sentence thereof (other than clause (iv) of the second sentence), Section 5.21, Section 5.22 ) and Section 5.23 Section 5.20 shall be true and correct (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing such time (or, if other than any such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at which shall be true and correct (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) in all material respects only as of such datetime); , (iiiii) the representations and warranties of the Parent Entities contained in Section 5.09(a)(iiSection 5.10(b) shall be true and correct in all respects at and as of the Closing as if made at and as of such time, (iii) the representations and warranties of the Parent Entities contained in Section 5.05(a), the second sentence of Section 5.05(b) (other than clause (iv) thereof) and the second sentence of Section 5.05(c) (other than clause (iv) thereof) shall be true and correct, subject only to De Minimis Inaccuracies, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; such time (other than any such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct, subject only to De Minimis Inaccuracies, only at and as of such time), and (iv) the all other representations and warranties of the Parent Entities contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Agreement shall be true and correct (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing such time (or, if other than any such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at which shall be true and correct (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) only as of such datetime), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(b) each of the Parent Entities shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing;
(c) the Company shall have received a certificate signed by an executive officer of Parent confirming the satisfaction of the conditions set forth in Sections 9.03(a) and 9.03(b); and
(d) the Founding Controlling Parent Shareholders shall have made the Founders Cash Contribution and the Founders Cash Contribution Amount shall continue to be held by HoldCo.
Appears in 1 contract
Samples: Merger Agreement (Avon Products Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained and Merger Sub (i) set forth in Section 5.05(aSection 5.2(a) (Capitalization) shall be true and correct, subject only to correct except for de minimis exceptions, at and inaccuracies as of the date of this Agreement and at as of the Closing Date as if made on and as of the Closing as if made at and Date (unless any such representation or warranty addresses matters only as of the Closing (or, if such representations and warranties are given as of another specific a particular date, at and as of in which event such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 representation or warranty shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and except for de minimis inaccuracies only as of such particular date), (ii) set forth in the first sentence of Section 5.1(a) (Organization), in Section 5.3 (Authorization; Validity of Agreement; Parent Action), Section 5.12 (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiVote Required), Section 5.13 (Board Recommendation) shall be true and correct in all respects at and as of the date of this Agreement and at (except for those set forth in Section 5.13(c) if the Unis Closing Date has occurred) as of the Closing Date as if made on and as of the Closing as if made at and Date (unless any such representation or warranty addresses matters only as of the Closing; and (iv) the other representations and warranties of Parent contained a particular date, in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality which event such representation or Parent Material Adverse Effect, warranty shall be true and correct at in all respects only as of such particular date), (iii) set forth in Section 5.6(a) (Absence of Certain Changes) shall be true and correct as of the date of this Agreement and at as of the Closing Date as if made on and as of the Closing Date (excluding, however, clause (a) of the definition of Parent Material Adverse Effect for purposes of this clause (iii)) (iv) set forth in Section 5.1(b), Section 5.1(c), Section 5.6(b) (as if made at it relates to Section 6.1(b)(iii) and (v)), Section 5.9, Section 5.15, Section 5.16, Section 5.17, Section 5.18, and Section 5.19, shall be true and correct as of the date of this Agreement and as of the Closing Date (or, if unless any such representations and warranties are given representation or warranty addresses matters only as of another specific date, at a particular date in which event such representation or warranty shall be true and correct only as of such particular date), except, in the case of this clause (iv) only), where the failure of such representations and warranties to be so true and correct has not had and (without giving effect to any limitation as to “materiality”, “Parent Material Adverse Effect” or similar qualifications as set forth therein) would not reasonably be expected to have, individually or in the aggregate, constitute a Parent Material Adverse Effect; and (v) set forth in Article V, other than those Sections specifically identified in clauses (i), (ii), (iii) and (iv) of this Section 7.3(a), shall be true and correct as of the date of this Agreement and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date in which event such representation or warranty shall be true and correct only as of such particular date), except, in the case of this clause (v), where the failure to be so true and correct (without giving effect to any limitation as to “materiality”, “Parent Material Adverse Effect” or similar qualifications as set forth therein) would not constitute a Parent Material Adverse Effect; provided that the conditions set forth in clauses (i), (iii) and (iv) shall not apply if the Unis Closing Date has occurred;
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Lawpermissible, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained set forth in Section 5.05(aSection 5.01 (other than the second sentence thereof), Section 5.02, Section 5.04(i) and Section 5.17 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (other than any such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct in all material respects only at and as of such time); (ii) the representations and warranties of Parent set forth in Section 5.05 shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than any such representations and warranties are given that by their terms address matters only as of another specific datespecified time, which shall be true and correct, subject only to de minimis exceptions, only at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such datetime); (iii) the representations representation and warranties warranty of Parent contained set forth in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Section 5.11 shall be true and correct at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time; and (or, if such iv) all other representations and warranties are given of Parent set forth in this Agreement shall be true and correct (without regard to materiality or Material Adverse Effect qualifiers contained therein) at and as of another specific date, the date of this Agreement and at and as of the Effective Time as if made at and as of such datetime (other than any such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct (without regard to materiality or Material Adverse Effect qualifiers contained therein) only at and as of such time), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on Parent;
(c) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.03(a) and Section 9.03(b); and
(d) both (i) the early termination or expiration of the waiting period required under the HSR Act shall have occurred and (ii) the Required Governmental Authorizations set forth in Section 9.03(d) of the Company Disclosure Schedule shall have been made or obtained and shall be in full force and effect.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the First Merger are is subject to the satisfaction (orof the following additional conditions, any one or more of which may be waived in writing by the Company and, to the extent permitted by Applicable Lawthe Required Transaction has not closed, waiver by the Company) of the following further conditionsSolaria:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent Acquiror contained in Section 5.05(a) Section 5.12 shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and correct in all material respects as of the Closing as if made at and as of the Closing (orDate, if except with respect to such representations and warranties are given which speak as of another specific to an earlier date, at and as of such date); (ii) the which representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 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 date aggregate, are in excess of this Agreement and at and as 5% of the Closing as if made at and as outstanding capital stock of the Closing Acquiror on a fully diluted basis, (or, if such representations and warranties are given as of another specific date, at and as of such date); (iiiii) the representations and warranties of Parent Acquiror contained in Section 5.09(a)(ii) Section 5.2 and Section 5.13 shall be true and correct in all 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 respects at and as of the such date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iviii) each of the other representations and warranties of Parent Acquiror contained in this Agreement, Agreement (disregarding all any qualifications and exceptions contained therein relating to materiality materiality, material adverse effect or Parent Material Adverse Effectany 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 at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptexcept for, in the case of this clause (iv) onlyiii), where the failure of such representations and warranties to be true and correct has not had and inaccuracies or omissions that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effectmaterial adverse effect on Acquiror’s ability to consummate the transactions contemplated 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 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, dated the Closing Date and signed by an officer of the Acquiror, 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.
Appears in 1 contract
Samples: Business Combination Agreement (Freedom Acquisition I Corp.)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated The representations and warranties of Acquiror contained in Section 5.12 (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) other than the representations and warranties of Parent contained set forth in Section 5.05(aSection 5.12(e) and Section 5.12(f)) shall be true and correct, subject only to correct in all but de minimis exceptions, at and as of the date of this Agreement and at and respects as of the Closing Date as if though made at on and as of such date (or in the Closing (or, if such case of representations and warranties are given that address matters only as of another specific a particular date, at and as of such date); , (ii) the representations Acquiror Fundamental Representations (disregarding any qualifications and warranties of Parent exceptions contained in Section 5.01 (other than the third sentence thereof)therein relating to materiality, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 material adverse effects and Section 5.23 Company Material Adverse Effects or any similar qualifications or exceptions) shall be true and correct in all material respects at and as of the date of this Agreement and at and respects, in each case, as of the Closing as if made at and as Date (or in the case of the Closing (or, if such representations and warranties are given that address matters only as of another specific a particular date, at and as of such date); , and (iii) each of the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent Acquiror contained in this Agreement, Agreement other than the Acquiror Fundamental Representations (disregarding all any qualifications and exceptions contained therein relating to materiality and material adverse effect or Parent Material Adverse Effect, any similar qualification or exception) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as if though made at on and as of such date (or in the Closing (or, if such case of representations and warranties are given that address matters only as of another specific a particular date, at and as of such date), exceptexcept for, in the case of this clause (iv) onlyeach case, where the failure of such representations and warranties to be true and correct has inaccuracies or omissions that have not had had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectmaterial adverse effect on Acquiror or Acquiror’s ability to consummate the transactions contemplated 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) The Obagi Cash Consideration is equal to or greater than $327,500,000.00 minus the Company Transaction Expenses Overage.
(d) Acquiror shall receive after completion of the transactions contemplated hereby an amount of cash equal to or exceeding the Minimum Available Acquiror Cash Amount.
(e) The Domestication shall have been completed as provided in Section 7.8, including that the deregistration of Acquiror in the Cayman Islands shall have been filed with the Cayman Registrar and a copy of the certificate of continuance issued by the Jersey Registrar in relation thereto shall have been delivered to the Company.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Investment and the other transactions contemplated hereby are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditionscondition:
(ai) each of Parent and Merger Sub The OHA Parties, as applicable, shall have performed in all material respects all of its their obligations hereunder required to be performed by it them at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing, (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent the OHA Parties contained in Section 5.05(a) Section 6.01, Section 6.06 and Section 6.07 shall be true in all respects as of the date hereof and correct, subject only to de minimis exceptions, as of the Closing as if made at and as of such time; and (B) the other representations and warranties of the OHA Parties contained in this Agreement shall be true as of the date of this Agreement hereof and at and as of the Closing as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereoftime), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptexcept for, in the case of this clause (ivB) only, where the failure of such representations and warranties failures to be true (disregarding all materiality and correct has not had and Material Adverse Effect qualifications contained therein) as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect with respect to such OHA Party, and (iii) the Company shall have received a certificate signed by an executive officer of each OHA Party to the foregoing effect;
(b) The OHA Advisor shall be in compliance in all material respects with its obligations under the Advisers Act as of the date of the Closing;
(c) The Investor shall have entered into the Stock Purchase Plan, effective as of the date of the Closing;
(d) The OHA Advisor shall have entered into the Replacement Advisory Agreement, effective as of the date of the Closing; and
(e) The OHA Administrator shall have entered into the Replacement Administration Agreement, effective as of the date of the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (NGP Capital Resources Co)
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are Mergers is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the The representations and warranties of Parent Acquiror contained in Section 5.05(a) Section 5.12 shall be true and correct, subject only to correct in all but de minimis exceptions, at and as of the date of this Agreement and at and respects as of the Closing as if made at and as of the Closing (orDate, if except with respect to such representations and warranties are given which speak as of another specific 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 Parent Acquiror contained in Section 5.01 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, in each case as of the third sentence thereof)Closing Date, Section 5.02except with respect to such representations and warranties which speak as to an earlier date, Section 5.04(i), Section 5.21, Section 5.22 which representations and Section 5.23 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 and at and which are contemplated or expressly permitted by this Agreement 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; 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 made at 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) The Domestication shall have been completed as provided in Section 7.8 and a time-stamped copy of the Closing certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company; and
(or, if such representations and warranties are given as of another specific date, at and as of such date); (iiid) the representations and warranties of Parent contained in Section 5.09(a)(ii) The Available Acquiror Cash shall be true and correct in all respects at and as of no less than the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Minimum Available Acquiror Cash Amount.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. III)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction or (or, to the extent permitted by Applicable Law, ) waiver by the Company) Company at or prior to the Effective Time of the following further conditions:
(a) (i) each of Parent and Merger Sub Subsidiary shall have performed or complied with, in all material respects respects, all of its obligations hereunder required to be performed or complied with by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent and Merger Subsidiary contained in Section Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 Section 5.05(b)(I) and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiSection 5.09(ii) shall be true and correct in all respects (except in the case of Section 5.05(a) and Section 5.05(b)(I) for any inaccuracy(ies) that individually or in the aggregate is or are de minimis relative to the fully diluted equity capitalization of Parent) at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such time), (B) the Closing; representations and warranties of Parent and Merger Subsidiary contained in Section 5.02, Section 5.17(b), Section 5.20, Section 5.21 and shall be true and correct in all material respects, without giving effect to any materiality, “Material Adverse Effect” and similar “material” qualifications contained therein, at and as of the Effective Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be so true and correct only as of such time) and (ivC) the other representations and warranties of Parent and Merger Subsidiary contained in this Agreement, Article 5 (disregarding all qualifications and exceptions contained therein relating to materiality or Parent materiality, “Material Adverse Effect, ” and similar “material” qualifications contained therein) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at which shall be so true and correct only as of such datetime), except, in the case of this clause (ivC) only, where the failure of such representations and warranties to be so true and correct correct, individually or in the aggregate, has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Effect on Parent, and (iii) the Company shall have received a certificate signed by an executive officer of Parent certifying as to the matters in this Section 9.03(a) and Section 9.03(b); and
(b) since the date of this Agreement there shall not have occurred any effect, change, development, event, circumstance, occurrence, condition, fact or state of facts that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect on Parent.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (or, on or prior to the extent permitted by Applicable Law, waiver Closing Date of the following conditions (which may be waived in whole or in part by the Company) of the following further conditions:):
(a) (i) each of Parent and Merger Sub Corp shall have performed in all material respects all of its covenants and obligations hereunder required to be performed by it at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and Closing, (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent and Merger Corp contained in Section the first sentence of Section 5.01 (Corporate Existence and Power), Section 5.02 (Corporate Authorization), Section 5.05(a) (Capitalization) and Section 5.15 (Finders’ Fees) shall be true and correctcorrect in all material respects, subject only to de minimis exceptions, in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if other than any such representations and warranties are given as of another specific date, that by their terms address matters only at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof)another specified time, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 which shall be true and correct in all material respects only at and as of such time), (B) the representations and warranties of Parent and Merger Corp contained in Section 5.10(b) (Absence of Certain Changes) shall be true and correct in all respects, in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing and (C) all other representations and warranties of Parent and Merger Corp contained in this Agreement or in any certificate or other writing delivered by Parent and Merger Corp pursuant hereto shall be true and correct in all respects (disregarding all materiality and Parent Material Adverse Effect qualifiers contained therein), in each case at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if other than any such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) which shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, Effect qualifiers contained therein) only at and as of such datetime), except, in the case of this clause (iv) onlyC), where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;; and
(b) the Company shall have received a certificate signed by an executive officer of Parent certifying that the condition set forth in Section 9.03(a) has been satisfied.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Becton Dickinson & Co)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger Integrated Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, written waiver by the Company) of the following further conditions:
(a) each of Parent and the Merger Sub Subs 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(aSections 5.5(a) and 5.5(d) shall be true and correctcorrect in all respects, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereofSection 5.1(a) and Section 5.1(b), Section 5.02Section 5.2, Section 5.04(iSection 5.4(a), Section 5.21, Section 5.22 Section 5.5(b) and Section 5.23 5.5(c) and Section 5.16 and shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(iiSection 5.10(ii) and Section 5.17 shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the ClosingClosing (or, if such representations and warranties are given as of another specific date, at and as of such date); and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(c) since the date of this Agreement, there shall not have occurred a Parent Material Adverse Effect; and
(d) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.3(a), Section 9.3(b) and Section 9.3(c).
Appears in 1 contract
Samples: Merger Agreement (McGrath Rentcorp)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a5.5(a) shall be true and correctcorrect in all respects, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 5.1 (other than the third sentence thereof), Section 5.025.2, Section 5.04(i5.4(a), Section 5.5(b) and 5.5(c), Section 5.6(b), Section 5.215.24, Section 5.22 Section 5.25 and Section 5.23 Section 5.26 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii5.10(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv(iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(c) since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;
(d) the Significant Stockholder Share Exchange shall have occurred;
(e) the Company shall have received a certificate from an executive officer of Parent confirming the satisfaction of the conditions set forth in Section 9.3(a), Section 9.3(b), Section 9.3(c) and Section 9.3(d);
(f) the Parent Annual Meeting shall have occurred; and
(g) the Company shall have received an opinion of Tax Counsel, in form and substance reasonably satisfactory to the Company, dated as of the Closing Date, to the effect that, on the basis of certain facts, representations and assumptions set forth in such opinion, the Merger will be treated for federal income tax purposes as a “reorganization” within the meaning of Section 368(a) of the Code (and, in rendering such opinion, such counsel may require and rely upon representations contained in certificates of officers of Parent and the Company, reasonably satisfactory in form and substance to such counsel).
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:
(a) (i) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and , (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (iA) the representations and warranties of Parent contained in Section 5.05(a) Section 5.01, 5.02, 5.05 and 5.16 shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if other than such representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true in all material respects only as of such date); (iiitime) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (ivB) the other representations and warranties of Parent and Merger Subsidiary contained in this Agreement, Agreement or in any certificate or other writing delivered by Parent or Merger Subsidiary pursuant hereto (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Parent Material Adverse Effect, Effect qualifications contained therein) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be true only as of such datetime), exceptwith, in the case of this clause (ivB) only, where the failure of only such representations and warranties to be true and correct has exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectEffect on Parent; and (iii) the Company shall have received a certificate signed by an executive officer of Parent to the foregoing effect;
(b) the Company shall have received an opinion of Cravath, Swaine & Mxxxx LLP 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 Effective Time, 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 and that each of Parent, Merger Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, Cravath, Swaine & Mxxxx LLP shall be entitled to rely upon representations of officers of Parent and the Company substantially in the form of Exhibit A and B hereto; and
(c) from the date of this Agreement to the Effective Time, there shall not have occurred and be continuing any event, occurrence, development or state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on Parent.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Company) of the following further conditions:conditions (any one of which may be waived in whole or part by the Company):
(a) each of Parent and Merger Sub shall have performed in all material respects all of its their respective material obligations hereunder required to be performed by it them at or prior to the Effective Time;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) each of the representations and warranties of Parent contained and Merger Sub (other than the representations and warranties set forth in Section 5.05(aSection 4.6 (public reporting), which shall not be deemed to be covered by this condition set forth in this Section 7.3(b)) shall be true and correct, subject only to de minimis exceptions, at and have been accurate in all respects as of the date of this Agreement and at shall be accurate in all respects as of the Closing Date as if made on and as of the Closing as if made at and as of the Closing Date (or, if except for any such representations and warranties are given made as of another a specific date, at and which shall have been accurate in all material respects as of such date); provided, however, that, (iii) for purposes of determining the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure accuracy of such representations and warranties to as of the foregoing dates, all materiality qualifications limiting the scope of such representations and warranties shall be true disregarded and correct has (ii) any inaccuracies in such representations and warranties will be disregarded if all such inaccuracies (considered collectively) do not had constitute, and would not reasonably be expected to have, individually have or in the aggregateresult in, a material adverse effect on the ability of Parent Material Adverse Effector Merger Sub to consummate the Merger or the other transactions contemplated hereby;
(c) Parent shall have delivered a certificate of an executive officer of Parent certifying the satisfaction of the conditions set forth in Sections 7.3(a) and (b);
(d) Parent or Merger Sub shall have delivered the Payment Fund to the Paying Agent; and
(e) Parent and Escrow Agent shall have executed and delivered the Escrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Teradyne, Inc)
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger transactions contemplated hereby are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by the Company) as of the Closing of the following further conditions:
(a) the representations and warranties made by each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects at (and all materiality qualifiers in such representations and warranties 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 date of this Agreement and at and as time of the Closing as if though made at and as of such time, except to the Closing (or, if extent such representations and warranties are given as of another specific date, at and as of expressly relate to an earlier date (in which case such date); (iii) the representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all material respects at (and all materiality qualifiers in such representations and warranties shall be disregarded for purposes of this Section 7.2(a) to prevent an unintended double materiality standard) on and as of such earlier date);
(b) Each of Parent and Merger Sub shall have performed or complied in all material respects with all obligations and covenants hereunder required to be performed or complied with by Parent or Merger Sub, as the date case may be, at or prior to the Closing Date (and all materiality qualifiers in such obligations and covenants shall be disregarded for purposes of this Section 7.2(b) to prevent an unintended double materiality standard);
(c) 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 Parent, dated as of the Closing Date, to the effect that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) a certificate signed by an authorized officer of Parent certifying as of the 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 and at the consummation of the transactions contemplated by this Agreement; and (C) incumbency matters;
(iii) a certificate of the Secretary of State or other applicable Governmental Entity certifying the good standing of each of Parent and Merger Sub in its jurisdiction of organization as of a date within seven days of the Closing as if made at and as of the Closing; and Date;
(iv) a counterpart to the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as Escrow Agreement duly executed by Parent; and
(v) a copy of the date Certificate of this Agreement and at and as Merger duly executed by an authorized officer of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect;Merger Sub.
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate consummate, or cause to be consummated, the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof), Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 Acquiror Fundamental Representations shall be true and correct in all material respects at and as of the date of this Agreement and at and respects, in each case as of the Closing as if made at and as of the Closing (orDate, if except with respect to such representations and warranties are given which speak as of another specific to an earlier date, at and as of such date); (iii) the which representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of such date, (ii) the representations and warranties of Acquiror contained in Section 5.11 and the first sentence of each of Section 5.13 (a) and (b) 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 at and as (iii) each of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent Acquiror contained in this Agreement, Agreement other than the Acquiror Fundamental Representations and the representations and warranties of Acquiror set forth in clause (ii) above (disregarding all any qualifications and exceptions contained therein relating to materiality and material adverse effect or Parent Material Adverse Effectany 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 at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptexcept for, in the case of this clause (iv) onlyeach case, where the failure of such representations and warranties to be true and correct has not had and inaccuracies or omissions that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effectmaterial adverse effect; provided, that for purposes of this Section 9.3(a) only, the representations and warranties set forth in Section 5.11 shall be true and correct solely as of the date of 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) 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;
(d) Excluding deferred underwriting fees and commissions and any fees and expenses incurred in connection with the negotiation, preparation and execution of this Agreement and the performance of the transactions contemplated thereby, the total outstanding liabilities of Acquiror shall not exceed $2,700,000;
(e) The Available Acquiror Cash shall be no less than the Minimum Available Acquiror Cash Amount;
Appears in 1 contract
Conditions to the Obligations of the Company. The obligations obligation of the Company to consummate the Merger are is subject to the satisfaction (orof the following additional conditions, to the extent permitted by Applicable Law, waiver any one or more of which may be waived in writing by the Company) of the following further conditions:
(a) each Each of Parent and Merger Sub 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;
(b) both (i) any applicable waiting period or periods under the HSR Act shall have expired or been terminated and (ii) the Company Condition Regulatory Approvals shall have been made or obtained, as applicable, and shall be in full force and effect;
(c) (i) the representations and warranties of Parent Acquiror and Merger Sub contained in Section 5.05(a) shall be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orwithout giving effect to any materiality qualification therein), if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of Parent contained in Section 5.01 (other than the third sentence thereof)Fundamental Representations of Acquiror and Merger Sub, Section 5.02, Section 5.04(i), Section 5.21, Section 5.22 and Section 5.23 shall be true and correct in all material respects as of the Closing Date, as if made anew at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (orthat time, if such except with respect to representations and warranties are given which speak as of another specific to an earlier date, at and as of such date); (iii) the which representations and warranties of Parent contained in Section 5.09(a)(ii) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of Parent contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Parent Material Adverse Effect, shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), exceptexcept for, in the case of this clause (iv) onlyeach case, where the failure of such representations and warranties failures to be true and correct has not had and that would not reasonably be expected to havematerially adversely affect the ability of Acquiror or Merger Sub to consummate the Transactions. The Fundamental Representations of Acquiror and Merger Sub shall be true and correct as of the Closing Date, individually as if made anew at and as of that time (except to the extent that any such representation and warranty speaks expressly as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date).
(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 8.3(a) and Section 8.3(b) have been fulfilled.
(d) Acquiror shall have delivered to the Company releases in the aggregateform of Annex D duly executed by Acquiror and Merger Sub, a Parent Material Adverse Effect;in each case, releasing (i) each director of the Company appointed by the Primary Holders, (ii) each officer of the Company and the Subsidiary and (iii) each director of the Subsidiary, in each case, from any Claims that Acquiror, Merger Sub, the Company or the Subsidiary may have against them as of the Closing, on the terms therein.
Appears in 1 contract
