Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies). (b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any Lien upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 4 contracts
Samples: Merger Agreement (Invitrogen Corp), Merger Agreement (Applera Corp), Merger Agreement (Invitrogen Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into and deliver this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Mergerby this Agreement. The execution Company Board at a duly held meeting has (i) approved, authorized and delivery of adopted this Agreement and the consummation transactions contemplated by this Agreement, including the First Merger, (ii) resolved, upon the terms and subject to the conditions set forth in this Agreement, that it is advisable, fair to and in the best interests of the Company and its stockholders to consummate the transactions contemplated hereby have been duly by this Agreement, including the First Merger in which the issued and validly authorized by the Board outstanding shares of Directors capital stock of the Company and, except will be converted into the right to receive the Merger Consideration and (iii) resolved to recommend the approval and adoption of this Agreement by the Company’s stockholders (the “Company Recommendation”) and directed that such matter be submitted for consideration by the stockholders of the Company at the Company Meeting. Except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of First Merger and the Certificate of Second Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the MergerAgreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)Enforceability Exceptions.
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the consummation of the Mergers and the other transactions contemplated by this Agreement by the Company do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCAnotification to any federal, (ii) the Securities Act of 1933state, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States local or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for the consummation by filing of the Certificate of First Merger and the Certificate of Second Merger, (ii) the expiration or termination of the waiting period under the HSR Act and the approvals or clearances identified in Section 4.3(b) of the Company Disclosure Letter required to consummate the First Merger under applicable Antitrust Laws, and the appropriate filings or notifications corresponding thereto, (iii) compliance with the applicable requirements of the transactions contemplated by this AgreementExchange Act, except for such authorizations(iv) compliance with the rules and regulations of any applicable stock exchange, consents(v) compliance with any applicable foreign or state securities or blue sky laws and (vi) the other consents and/or notices set forth on Section 4.3(b) of the Company Disclosure Letter (collectively, approvals clauses (i) through (vi), the “Specified Approvals”), and other than any consent, approval, authorization, permit, action, filing or filings thatnotification the failure of which to make or obtain would not (A) have, if not obtained or made, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on (disregarding, for purposes of this Section 4.3(b) only, subclause (iv)(A) of the Companyproviso to the definition of “Company Material Adverse Effect”) or (B) prevent or materially delay consummation of the Mergers.
(c) The execution execution, delivery and delivery performance by the Company of this Agreement does not, and the consummation by the Company of the Mergers and the other transactions contemplated hereby by this Agreement do not and compliance with the provisions hereof will not (i) assuming receipt of the Company Stockholder Approval, contravene or conflict with, or breach any provision of, the organizational or governing documents of the Company or any of its Significant Subsidiaries, (ii) assuming compliance with the matters referenced in Section 4.3(b), receipt of the Specified Approvals and the receipt of the Company Stockholder Approval, (A) contravene or conflict with or constitute a violation of any provision of any Law, judgment, writ or injunction of any Governmental Entity binding upon or applicable to the Company or any of its Significant Subsidiaries or any of their respective properties or assets, or (B) assuming consummation of the actions contemplated by Section 3.6, result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon Contract to which the Company or any of the Company’s its Significant Subsidiaries or by which they or any of their respective properties or assets may be bound or affected, or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s its Significant Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (iii)(A) and (iiiB), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and (x) would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on (disregarding, for purposes of this Section 4.3(c) only, subclause (iv)(A) of the Companyproviso to the definition of “Company Material Adverse Effect”) or (y) prevent or materially delay consummation of the Mergers.
Appears in 3 contracts
Samples: Merger Agreement (Noble Corp PLC), Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Diamond Offshore Drilling, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the MergerTransactions. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the Merger or the consummation of the transactions contemplated herebyTransactions. The As of the date hereof, the Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) unanimously resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the MergerTransactions (the “Company Recommendation”) and directed that such matter be submitted for consideration of the stockholders of the Company at the Company Stockholders’ Meeting, and such resolutions have not been subsequently rescinded, modified or withdrawn in any way. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAMGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (vvi) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European CommunityFederal Power Act, as amended (the “ECMRFPA”), and the approval of the Federal Energy Regulatory Commission (the “FERC”) thereunder (the “FERC Approval”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) to the extent required, the rules and regulations of (1) the New York Stock Exchange Maryland Public Service Commission (the “NYSEMPSC”), (2) the Pennsylvania Public Utility Commission (the “PPUC”), (3) the Virginia State Corporation Commission (the “VSCC”), (4) the Public Service Commission of West Virginia (the “WVPSC” and collectively with the MPSC, PPUC and VSCC, the “Applicable PSCs”) and (viii) pre-approvals of license transfers by the Federal Communications Commission (the “FCC”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as collectively, the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, or action by, the United States, any state of the United States or any foreign governmental or regulatory agency, commission, court, panel, body, entity or authority (each, a “Governmental Entity”) is necessary for or required to be obtained or made under applicable Law in connection with the consummation execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder or the transactions contemplated consummation of the Transactions by this Agreementthe Company, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, provided the Company Approvals are obtained, the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) conflict with, result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due or delinquent, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet, (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company or (E) which does not and would not reasonably be expected to materially impair the continued use and operation of the assets to which they relate as operated as of the date hereof or any property at which the material operations of the Company or any of its Subsidiaries are conducted as of the date hereof (each of the foregoing (A) through (E), a “Company Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate articles of incorporation restatement or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documents, in each case, as amended, document of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 3 contracts
Samples: Merger Agreement (Firstenergy Corp), Merger Agreement (Allegheny Energy, Inc), Merger Agreement
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), and to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company Company, and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, the Board of Directors of the Company has unanimously determined (x) that the transactions contemplated by this Agreement are fair to and it is in the best interest of the Company and its stockholders stockholders, and (y) declared it advisable to enter into this Agreement and consummate the transactions contemplated hereby and resolved to recommend that such the Company’s stockholders vote in favor of the approval adopt and adoption of approve this Agreement and the Mergertransactions contemplated hereby in accordance with the Company Organizational Documents and the DGCL (the “Company Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that such enforceability (except to the extent that enforceability i) may be limited by applicable bankruptcy, insolvency, reorganization or reorganization, moratorium and other similar Laws affecting the enforcement of or relating to creditors’ rights generally or by principles generally, and (ii) is subject to the rules governing the availability of specific performance, injunctive relief or other equitable remedies)remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for other than such authorizations, consents, approvals orders, licenses, permits, approvals, registrations, declarations, notices or filings thatwhich, if not obtained or made, individually or in the aggregate, would not reasonably be expected to have, individually or in be material to the aggregate, Company and its Subsidiaries taken as a Material Adverse Effect on the Companywhole.
(c) The execution and delivery by the Company of this Agreement does do not, and except as described in Section 3.3(c) of the Company Disclosure Schedule, the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet delinquent, being contested in good faith in appropriate proceedings or for which adequate accruals or reserves have been established in accordance with GAAP, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which does not and would not reasonably be expected to materially impair the continued use of any Company Owned Real Property or Company Leased Real Property as currently operated, (D) incurred in connection with the Debt Financing or any amendment of the NewPage ABL Loan prior to the Closing Date to permit the New NewPage Term Loan Facility and the Recapitalization Dividend or (E) all other Liens the creation or existence of which, in each case, would not be reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole (each of the foregoing, a “Permitted Lien”), in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Company Stockholders Agreement or (iii) assuming the receipt of all consents, approvals, waivers, clearances and authorizations and the making of notices, filings and submissions described in Section 3.3(b) or in Schedule 3.3(b), conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of the foregoing clauses (i) and or (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries taken as a Material Adverse Effect on whole.
(d) Prior to the Companyexecution of this Agreement, the Company Stockholders Agreement was amended and the Company provided Parent with a copy of such amendment.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Verso Paper Corp.), Merger Agreement (NewPage Holdings Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Shareholder Approval (as defined in Section 3.20 of this Agreementhereinafter defined), to consummate the transactions contemplated hereby. The Board of Directors of the Company at a duly held meeting has unanimously (i) determined that it is in the best interests of the Company and its shareholders, and declared it advisable, to enter into this Agreement including the Merger. The execution , the Plan, the Voting Agreements and the transactions contemplated hereby and thereby, (ii) approved the execution, delivery and performance of this Agreement and the Plan and the consummation of the transactions contemplated hereby have been duly and validly authorized by thereby, including the Board of Directors Merger, and (iii) resolved, subject to Section 5.3, to recommend that the shareholders of the Company and, except approve this Agreement and the Plan (the “Recommendation”) and directed that such matter be submitted for consideration of the shareholders of the Company at the Company Meeting (as hereinafter defined). Except for the (i) Company Stockholder Shareholder Approval and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareMinnesota, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that such enforceability (except to the extent that enforceability i) may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or other Laws affecting relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or by principles governing in equity (the availability of equitable remedies“Bankruptcy and Equity Exception”).
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the consummation of the Merger by the Company do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCAnotification to any state, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States federal or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary other than (i) the filing of the Articles of Merger, (ii) compliance with applicable federal or state antitrust, competition or similar Laws of any foreign jurisdiction, (iii) compliance with the applicable requirements of the Securities Exchange Act of 1934 (the “Exchange Act”), including the filing of the Proxy Statement (as hereinafter defined), (iv) compliance with any applicable foreign or state securities or blue sky laws, and (v) the other consents and/or notices set forth on Section 3.3(b) of the Company Disclosure Schedule (collectively, clauses (i) through (v), the “Company Approvals”), and other than any other consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not (A) individually or in the aggregate, have a Company Material Adverse Effect (the definition of which, for the purposes of this Section 3.3(b) and for purposes of Section 6.3(a) as it relates to this Section 3.3(b), shall be interpreted so that facts or changes resulting from the announcement or consummation of the transactions contemplated by this Agreement shall not be excluded from the definition of Company Material Adverse Effect) or (B) prevent or materially delay the consummation of the Merger.
(c) The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, Merger and the consummation of the other transactions contemplated hereby do not and compliance with the provisions hereof will not (i) contravene or conflict with the organizational or governing documents of the Company or any of its Subsidiaries, (ii) assuming compliance with the matters referenced in Section 3.3(b) and the receipt of the Company Shareholder Approval, contravene or conflict with or constitute a violation of any provision of any Law binding upon or applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under under, any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due or being contested in good faith, provided adequate accruals or reserves have been established in accordance with GAAP, or (B) which is disclosed on the most recent consolidated balance sheet of the Company included in the Company SEC Documents (each of the foregoing, a “Company Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (iii) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on (the Companydefinition of which, for the purposes of this Section 3.3(c) and for purposes of Section 6.3(a) as it relates to this Section 3.3(c), shall be interpreted so that facts or changes resulting from the announcement or consummation of the transactions contemplated by this Agreement shall not be excluded from the definition of Company Material Adverse Effect).
Appears in 3 contracts
Samples: Merger Agreement (Cardionet Inc), Merger Agreement (Biotel Inc.), Merger Agreement (Biotel Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement Agreement, the Voting Agreement, the OpCo Spin-Off Agreements and each other document to be entered into by the Company in connection with the transactions contemplated hereby and thereby (together with this Agreement, the “Company Transaction Documents”) and, subject to receipt of approval of this Agreement by holders of at least a majority of the outstanding shares of Company Common Stock (the “Company Stockholder Approval Approval”) and the occurrence of the shareholder advisory vote contemplated by Rule 14a-21(c) under the Exchange Act, regardless of the outcome of such vote (as defined in Section 3.20 of this Agreementthe “Company Stockholder Advisory Vote”), to consummate the transactions contemplated hereby, including the Mergerhereby and thereby. The execution and delivery by the Company of this Agreement and the Voting Agreement and the consummation of the transactions contemplated hereby have has been, and the execution and delivery of the other Company Transaction Documents and the consummation of the transactions contemplated thereby has been or shall be, duly and validly authorized by the Company Board of Directors of the Company and, except for the Company Stockholder Approval, the occurrence of the Company Stockholder Advisory Vote and the filing of the Certificate of Merger with the Secretary of State of Delaware, no other corporate proceedings on the part of the Company or vote of the Company’s securityholders are necessary to authorize the consummation of the transactions contemplated hereby. The Company Board of Directors has unanimously (i) resolved to recommend that the Company’s stockholders adopt this Agreement (the “Company Stockholder Approval Recommendation”), (ii) determined that this Agreement and the Merger are advisable and in the best interests of the Company’s stockholders, (iii) approved the execution, delivery and performance of this Agreement and the Merger, and (iiiv) resolved that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders. This Agreement and the Voting Agreement have been, and the other Company Transaction Documents shall be, duly and validly executed and delivered by the Company and, assuming each of this Agreement, the Voting Agreement and the Company Transaction Documents constitute the legal, valid and binding agreement of the counterparty thereto, this Agreement and the Voting Agreement constitute, and the Company Transaction Documents will constitute, legal, valid and binding agreements of the Company and are enforceable against the Company in accordance with their terms, except as such enforcement may be subject to the limitation of such enforcement by (1) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting or relating to creditors’ rights generally or (2) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Exchange Act, (iii) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976applicable state securities, as amended (the takeover and “HSR Act”)blue sky” Laws, (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”), (vi) (the consents compliance with and approvals referenced in clauses (i) through obtaining such Gaming Approvals as may be required under applicable Gaming Laws, and (vii) above being collectively referred such consents, filings and notifications, including Gaming Approvals, as may be required to herein as effect the Distribution (collectively, the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.2(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or local, foreign or multi-national governmental or regulatory agency, commission, court, body, entity court or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, orders, licenses, permits, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement and have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement and the other Company Transaction Documents does not, and (assuming the Company Approvals are obtained, the Company Notes are Discharged prior to the Effective Time and the Company Credit Agreement is terminated and repaid in full prior to the Effective Time) the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (excluding, in each case, transfer restrictions of general applicability pursuant to any securities Laws) (each, a “Lien”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of its Subsidiaries, except for such losses, suspensions, limitations, impairments, conflicts, violations, defaults, terminations, cancellation, accelerations, or Liens which have not had or would not reasonably be expected to have, individually or in the Company’s Subsidiariesaggregate, a Company Material Adverse Effect, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company Laws, except for such conflict or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that violation as has not had, and had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 3 contracts
Samples: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Pinnacle Entertainment Inc.), Merger Agreement (Gaming & Leisure Properties, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Each of the Parent and Merger Sub has all requisite corporate power and authority to enter into this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Parent Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the MergerTransactions. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Board Boards of Directors of the Company Parent and Merger Sub, by Parent, as the sole stockholder of Merger Sub, and, except for the (i) Company Parent Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company Parent are necessary to authorize the Merger or the consummation of the transactions contemplated herebyTransactions. The Board of Directors of the Company Parent at a meeting duly called and held at which all directors of Parent were present has (i) determined (x) that the transactions contemplated by this Agreement are Merger is fair to to, and in the best interest of the Company interests of, Parent and its stockholders and stockholders, (yii) to recommend that such stockholders vote in favor of the approval and adoption of approved this Agreement and the MergerTransactions, (iii) unanimously resolved, subject to Section 5.3, to recommend that the Parent’s stockholders approve the Transactions, including the Merger (the “Parent Recommendation”) and (iv) directed that such matter be submitted for consideration of the stockholders of Parent at the Parent Stockholders’ Meeting, and such resolutions have not been subsequently rescinded, modified or withdrawn in any way. This Agreement has been duly and validly executed and delivered by the Company Parent and Merger Sub and, assuming this Agreement constitutes a valid and binding agreement of the other parties heretolegal, constitutes a valid and binding agreement of the Company, constitutes the legal, valid and binding agreement of each of Parent and Merger Sub, enforceable against the Company Parent and Merger Sub in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL Nevada Revised Statutes, and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (viiiii) such consents as may be required under applicable state securities or “blue sky” Laws and the rules and regulations of the New York Stock Exchange NYSE Amex (collectively, the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Parent Approvals”), and, subject to the accuracy of the representations and warranties of the Company in Section 3.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, or action by any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) Entity is necessary for or required to be obtained or made under applicable Law in connection with the execution and delivery of this Agreement by each of Parent and Merger Sub, the performance by the Parent and Merger Sub of their respective obligations hereunder or the consummation by the Company of the transactions contemplated Transactions by this AgreementParent and Merger Sub, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company Parent and Merger Sub of this Agreement does do not, and and, provided the Parent Approvals are obtained, the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) except as set forth on Section 4.3(c) on the Parent Disclosure Schedule, conflict with, result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, deed of trust, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company Parent or Merger Sub or any of the Company’s their respective Subsidiaries or result in the creation of any Lien, other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due or delinquent or being contested in good faith and for which adequate accruals or reserves have been established in accordance with GAAP as shown on Parent’s most recent audited consolidated balance sheet, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of Parent or notes thereto or securing liabilities reflected on such balance sheet, (D) which does not and would not reasonably be expected to materially impair the continued use and operation of the assets to which they relate as operated as of the date hereof or any property at which the material operations of Parent or any of its Subsidiaries are conducted as of the date hereof (each of the foregoing (A) through (D), a “Parent Permitted Lien”), upon any of the properties or assets of the Company Parent or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Parent Organizational Documents”) or the certificate of incorporation or by-laws Documents or other equivalent organizational documents, in each case, as amended, document of any Subsidiaries of the Company’s Subsidiaries, Parent or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on the CompanyEffect.
Appears in 3 contracts
Samples: Merger Agreement (Vertro, Inc.), Merger Agreement (Vertro, Inc.), Merger Agreement (Inuvo, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of assuming the representations and warranties set forth in Section 4.25 are true and correct and the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)is obtained, to consummate the transactions contemplated herebyTransactions, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors of and, assuming the Company andrepresentations and warranties set forth in Section 4.25 are true and correct, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareDSOS, no other corporate proceedings on the part of the Company or any Company Subsidiary are necessary to authorize the consummation of the transactions contemplated herebyTransactions other than, with respect to the Merger, obtaining the Company Stockholder Approval. The Prior to the execution of this Agreement, the Company Board of Directors of the Company has determined unanimously (x) resolved that the transactions contemplated by this Agreement and the Transactions, including the Merger, are fair to and in the best interest interests of the Company and its the stockholders and of the Company, (y) to recommend that such stockholders vote in favor of the approval approved and adoption of declared advisable this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the DGCL and (z) has adopted a resolution to make the Company Board Recommendation and to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus, in each case subject to Section 5.3. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”), (vi) the approvals other Antitrust Laws set forth on Section 3.3(b) of the Company Disclosure ScheduleLetter, (vi) any applicable requirements of the NYSE and (vii) the rules and regulations consents set forth on Section 3.3(b) of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Disclosure Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and, except as described in Section 3.3(b) and assuming that the representations and warranties set forth in Section 4.25 are true and correct, the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof of this Agreement will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company or any of the Company’s Company Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s Company Subsidiaries, other than Company Permitted Liens, (ii) subject to obtaining the Company Stockholder Approval, conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Company Subsidiary or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Company Subsidiaries or any of their respective properties or assets, other than, than in the case of clauses (i), (ii) (with respect to Company Subsidiaries that are not Significant Subsidiaries) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 3 contracts
Samples: Merger Agreement (Allergan Inc), Merger Agreement (Warner Chilcott LTD), Merger Agreement (Actavis PLC)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the MergerTransactions. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the Merger or the consummation of the transactions contemplated herebyTransactions. The Board of Directors of the Company at a meeting duly called and held at which all directors of the Company were present has (i) determined (x) that the transactions contemplated by this Agreement are Merger is fair to to, and in the best interest of interests of, the Company and its stockholders and stockholders, (yii) to recommend that such stockholders vote in favor of the approval and adoption of approved this Agreement and the MergerTransactions, (iii) unanimously resolved, subject to Section 5.3, to recommend that the Company’s stockholders approve this Agreement and the Transactions (the “Company Recommendation”) and (iv) directed that such matter be submitted for consideration of the stockholders of the Company at the Company Stockholders’ Meeting, and such resolutions have not been subsequently rescinded, modified or withdrawn in any way. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL DGCL, and the DLLCA, (ii) the Securities Exchange Act of 19331934, as amended (the “Securities "Exchange Act”"), and (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, such consents as amended (the may be required under applicable state securities or “HSR Act”), (v) any applicable non-United States competition, antitrust blue sky” Laws and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange NASDAQ (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as collectively, the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, or action by, the United States, any state of the United States or any foreign governmental or regulatory agency, commission, court, panel, body, entity or authority (each, a “Governmental Entity”) is necessary for or required to be obtained or made under applicable Law in connection with the consummation execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder or the transactions contemplated consummation of the Transactions by this Agreementthe Company, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, provided the Company Approvals are obtained, the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) except as set forth on Section 3.3(c) of the Company Disclosure Schedule, conflict with, result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, deed of trust, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due or delinquent or being contested in good faith and for which adequate accruals or reserves have been established in accordance with GAAP as shown on the Company’s most recent audited consolidated balance sheet, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet, (D) which does not and would not reasonably be expected to materially impair the continued use and operation of the assets to which they relate as operated as of the date hereof or any property at which the material operations of the Company or any of its Subsidiaries are conducted as of the date hereof (each of the foregoing (A) through (D), a “Company Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws Documents or other equivalent organizational documents, in each case, as amended, document of any Subsidiaries of the Company’s Subsidiaries, Company or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 3 contracts
Samples: Merger Agreement (Vertro, Inc.), Merger Agreement (Vertro, Inc.), Merger Agreement (Inuvo, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remediesrelief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought (clauses (i) and (ii), the “Enforceability Exceptions”).
(b) Other than in connection with Except as may be required under or in compliance with relation to (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iii) the Exchange Act, and (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on in Section 3.3(b4.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange Schedule (the “NYSE”) (the consents and approvals referenced in or other actions contemplated by clauses (i) through (vii) above being collectively referred to herein as iv), collectively, the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 5.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 4.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material contract, agreement, loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien Lien, other than any Company Permitted Liens upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of the Company or any of the Company’s its Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaw, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect.
(d) The Board of Directors of the Company has, at a meeting duly called and held, duly adopted resolutions (i) determining that it is in the best interest of the Company and its stockholders, and declaring it advisable, to enter into this Agreement, (ii) authorizing and approving the execution, delivery and performance of this Agreement in accordance with its terms and the consummation of the transactions contemplated hereby, including the Merger, (iii) directing that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders, and (iv) recommending that the Company’s stockholders adopt this Agreement (the “Company Recommendation”), and (v) rendering the restrictions, if any, in the Company’s certificate of incorporation (the “Charter Restrictions”) inapplicable to the transactions contemplated by this Agreement (including the Merger), and (vi) rendering the restrictions on “business combinations” (as defined in Section 203 of the DGCL) as set forth in Section 203 of the DGCL (the “DGCL 203 Restrictions”) inapplicable to this Agreement and the transactions contemplated hereby (including the Merger), which resolutions, as of immediately prior to the execution of this Agreement, have not been rescinded, modified or withdrawn.
Appears in 2 contracts
Samples: Merger Agreement (Fitlife Brands, Inc.), Merger Agreement (iSatori, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing assuming Parent is not an “interested stockholder” under Section 203 of the Certificate of Merger with the Secretary of State of the State of DelawareDGCL), no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the Amendment Date, the Board of Directors of the Company has determined unanimously (xamong the directors present and voting) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (the “Company Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of Parent and Merger Sub, constitutes the legal, valid and binding agreement of the other parties hereto, constitutes a valid Company and binding agreement of the Company, is enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as such enforcement may be limited by applicable (i) the effect of bankruptcy, insolvency, reorganization reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting the enforcement of or relating to creditors’ rights generally or by principles (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remediesremedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions Section 251 of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (vvi) any applicable non-United States competitionthe Federal Power Act, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of 16 U.S.C. §§ 791a-825r and/or the European Community, as amended regulations promulgated by Federal Energy Regulatory Commission (the “ECMRFERC”) thereunder (the “FPA”), and the approval of the FERC thereunder (the “FERC Approval”), (vivii) the approval of the Massachusetts Department of Public Utilities (the “MDPU Approval”), (viii) the approval of Missouri Public Service Commission (the “MPSC Approval”), (ix) the approval of the Federal Communications Commission (the “FCC”) for the transfer of control (or assignment, as applicable) of the Company’s business radio and other Title III wireless licenses, pursuant to Section 310 of the Communications Act of 1934, as amended, 47 U.S.C. § 310(d) (the “FCC Approval”); and (x) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority authority, independent system operator, regional transmission organization, other market administrator, or national, regional or state reliability organization (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if that are not required to be obtained or made, would not reasonably be expected made prior to have, individually or in the aggregate, a Material Adverse Effect on the Companyconsummation of such transactions.
(c) The Except as set forth in Section 3.3(c) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement does do not, and (assuming the Company Approvals are obtained and the Requisite Regulatory Approvals are obtained without any adverse condition or restraint) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or material suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets material to the conduct of their business or result in any material violation of, or material default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s its Subsidiaries or (iii) materially conflict with or materially violate any applicable Laws.
(d) This Agreement and the Merger have been approved by the Continuing Directors of their respective properties or assetsCrossCountry Energy, other thanLLC, a Delaware limited liability company (“CrossCountry”). For the purposes of this subsection (d), the term “Continuing Director” shall have the meaning ascribed thereto in that certain Capital Stock Agreement, dated June 30, 1986, among El Paso Energy Corporation (as successor interest to Sonat, Inc. by virtue of a merger), CrossCountry (as successor in interest to Enron Corp., which in turn was the case successor in interest to InterNorth, Inc. by virtue of clauses (ia name change, which in turn was the successor in interest to Houston Natural Gas corporation by virtue of a merger) and (iii)Citrus Corp. relating to the ownership by El Paso and CrossCountry of the Capital Stock of Citrus and its wholly owned subsidiaries, any as amended. CrossCountry is currently a “Principal” to such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyCapital Stock Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Energy Transfer Equity, L.P.), Agreement and Plan of Merger (Southern Union Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject (in the case of the Merger) to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to consummate the transactions contemplated herebyTransactions, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors and (in the case of the Merger, except for (i) receipt of the Company and, except for the (i) Company Stockholder Shareholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of DSOS and the State of Delaware, CA Merger Agreement with the CSOS) no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated herebyTransactions. The On or prior to the date hereof, the Company Board of Directors of the Company has determined unanimously (x) resolved that the transactions contemplated by this Agreement and the Transactions, including the Merger, are fair to and in the best interest interests of the Company and its stockholders and the shareholders of the Company, (y) to recommend that such stockholders vote in favor of the approval approved and adoption of declared advisable this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the CGCL, and (z) has adopted a resolution to make, subject to Section 5.3, the Company Board Recommendation. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCACGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)NASDAQ, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company or any of the Company’s Company Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s Company Subsidiaries, other than Company Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Company Subsidiary or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Company Subsidiaries or any of their respective properties or assets, other than, than in the case of clauses (i), (ii) (with respect to Company Subsidiaries that are not Significant Subsidiaries) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Questcor Pharmaceuticals Inc), Merger Agreement (Mallinckrodt PLC)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and each other document to be entered into by the Company in connection with the transactions contemplated hereby (together with this Agreement, the “Company Transaction Documents”) and, subject to receipt of approval of this Agreement by the holders of at least a majority of the outstanding Shares (the “Company Stockholder Approval (as defined in Section 3.20 of this AgreementApproval”), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) assuming the filing accuracy of the Certificate of Merger with the Secretary of State of the State of Delawarerepresentations and warranties set forth in Section 4.18), no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) unanimously resolved to recommend that the transactions contemplated by Company’s stockholders adopt this Agreement are fair to and in (the best interest “Company Recommendation”). Each of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement Transaction Documents has been duly and validly executed and delivered by the Company and, assuming this Agreement each such Company Transaction Documents constitutes a the legal, valid and binding agreement of the other parties heretocounterparty thereto, each of the Company Transaction Documents constitutes a the legal, valid and binding agreement of the Company, Company and is enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions Section 251 of the DGCL and the DLLCADGCL, (ii) the U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder (the “Exchange Act”), (iii) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iiiiv) applicable state securities, takeover and “blue sky” laws, (v) the rules and regulations of the New York Stock Exchange Act(“NYSE”), (ivvi) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), (v) and any applicable non-United States competitionantitrust, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 competition or similar laws outside of the European CommunityUnited States, as amended and (the “ECMR”), (vivii) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of ETP and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority authority, independent system operator, regional transmission organization, other market administrator, or national, regional or state reliability organization (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, orders, licenses, permits, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not reasonably be expected to materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and (assuming the Company Approvals are obtained) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Company Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, except in the case of clauses (i) and (iii)) for such losses, any such violationsuspensions, conflictlimitations, defaultimpairments, rightconflicts, loss violations, defaults, terminations, cancellation, accelerations, or Lien that has not had, and Liens as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Energy Transfer Partners, L.P.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Each of Parent and Merger Sub has the requisite corporate or limited liability company power and authority to enter into this Agreement andAgreement, subject to receipt of the Company Parent Stockholder Approval (as defined in Section 3.20 4.19 of this Agreement), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of Parent and the Company manager of Merger Sub and, except for the (i) Company the Parent Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Parent or Merger Sub are necessary to authorize the consummation of the transactions contemplated herebyhereby and thereby. The Board of Directors of the Company Parent has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company Parent and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the MergerStock Issuance. This Agreement has been duly and validly executed and delivered by the Company Parent and Merger Sub and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the CompanyParent and Merger Sub, enforceable against the Company Parent and Merger Sub in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment lawsLaws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) 4.3 of the Company Parent Disclosure Schedule, Schedule and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) Nasdaq Global Select Market (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein collectively as the “Company Parent Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) Entity is necessary for the consummation by the Company Parent of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings filings, that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyParent.
(c) The execution and delivery by the Company Parent of this Agreement does do not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under under, any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company Parent or any of the Company’s its Subsidiaries or result in the creation of any Lien upon any of the properties or assets of the Company Parent or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the CompanyParent, as amended (the “Company Parent Organizational Documents”) ), or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the CompanyParent’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or Parent, any of the Company’s its Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyParent.
Appears in 2 contracts
Samples: Merger Agreement (Invitrogen Corp), Merger Agreement (Applera Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to consummate the transactions contemplated hereby, including the Mergerby this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by this Agreement have been duly and validly authorized by the Board of Directors of and, to the Company extent required, by the Special Committee (acting unanimously) and, except for the (i) the Company Stockholder Approval and Meeting, (ii) the filing of Company Shareholder Approval, and (iii) the Certificate of Merger with delivery to the Secretary Department of State of the State of DelawareFlorida for filing of the Articles of Merger, no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or the consummation of the transactions contemplated herebyby this Agreement. The Special Committee has unanimously determined and resolved, and the Board of Directors of has determined and resolved (i) that the Merger is fair to, and in the best interests of, the Company has determined and its shareholders, (xii) to submit this Agreement for approval by the Company’s shareholders and to declare the advisability of this Agreement and (iii) to recommend that the Company’s shareholders approve this Agreement and the transactions contemplated by this Agreement are fair to (collectively, the “Recommendation”), all of which determinations and resolutions have not been rescinded, modified or withdrawn in the best interest any way as of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption date of this Agreement and the MergerAgreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except (except to the extent that i) as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other Laws similar laws affecting the enforcement of creditors’ rights generally or by principles governing generally, and (ii) as the availability remedy of specific performance and other forms of injunctive relief may be subject to equitable remedies)defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with the applicable requirements of (i) the provisions FBCA, including, but not limited to, the delivery to the Department of State of the DGCL and State of Florida for filing of the DLLCA, Articles of Merger (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (viv) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 the Securities Act of the European Community, as amended 1933 (the “ECMRSecurities Act”), (v) applicable foreign or state securities or Blue Sky Laws, (vi) the rules and regulations of NASDAQ Global Select Market, and (vii) the approvals set forth on Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.9, no authorization, consent consent, permit, action or approval of, or filing with, or notification to, any United States federal, state or local or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this AgreementAgreement or the control and operation of the Company, its Subsidiaries and their respective businesses by Parent, except for any such authorizationsauthorization, consentsconsent, approvals permit, action, approval, filing or filings that, if not obtained notification the failure of which to make or made, obtain would not (A) reasonably be expected to haveexpected, individually or in the aggregate, to have an adverse affect equal to or greater than 2.5% of the revenues, EBITDA or assets of the Company and its Subsidiaries, taken as a Material Adverse Effect on whole or (B) reasonably be expected to prevent or materially delay the Companyconsummation of the Merger or the other transactions contemplated hereby.
(c) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby by this Agreement and compliance with the provisions hereof of this Agreement will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, amendment, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right permit or license agreement (collectively, “Contracts”) binding upon the Company or any of the Company’s Subsidiaries its Subsidiaries, or to which any of them is a party or any of their respective properties are bound, or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due or payable, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s construction or other similar lien arising in the ordinary course of business not yet due or payable, (C) which is disclosed on the most recent consolidated balance sheet of the Company (or notes thereto or securing liabilities reflected on such balance sheet) or (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company (each of the foregoing, a “Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate articles of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of its Subsidiaries, or to the Company’s Subsidiariesknowledge, the Managed Practices or (iii) assuming receipt of the Company Shareholder Approval, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i), (ii) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that (A) has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on or (B) would not reasonably be expected to prevent or materially delay the Companyconsummation of the Merger or the other transactions contemplated hereby.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth a list of any consent, approval, authorization or permit of, action by, registration, declaration or filing with or notification to any person under any (i) Company Material Contract or (ii) material lease, material sublease, material assignment of lease or material occupancy agreement (each a “Material Lease”) to which the Company or any of its Subsidiaries is a party which is required in connection with the consummation of the Merger and the other transactions contemplated by this Agreement (the “Third Party Consents”), other than those the failure of which to obtain, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Radiation Therapy Services Inc), Merger Agreement (Vestar Capital Partners v L P)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into execute and deliver this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), and to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board of Directors of the Company and, except for the (i) Company Stockholder Approval in the case of the Merger, approval of this Agreement by the holders of sixty-six and two-thirds percent (66 2/3%) of all of the Shares entitled to be cast, if required by applicable law and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of this Agreement or to consummate the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Purchaser, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability of equitable remediesat Law).
(b) Other than in connection with or in compliance with (i) the provisions filing with the Secretary of State of the DGCL State of Delaware of the Certificate of Merger and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses Annex I (i) through (vii) above being collectively referred to herein as collectively, the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals approvals, permits, actions, notifications or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
(c) The Company Board of Directors has unanimously approved this Agreement and the transactions contemplated hereby (including the Offer and the Merger), which approval, to the extent applicable, constituted approval under the provisions of Section 203 of the DGCL as a result of which this Agreement and the Transactions are not and will not be subject to the restrictions on “business combinations” under, the Section 203 of the DGCL.
(d) Except as described in Section 3.4 of the Company Disclosure Letter, the execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, ; (ii) conflict with or result in any violation of any provision of the certificate or articles of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documents, in each case, as amended, document of the Company or any of the Company’s its Subsidiaries, ; or (iii) assuming that the consents and approvals referred to in Section 3.4 of the Company Disclosure Letter are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect on Effect.
(e) The affirmative vote (in person or by proxy) of the Companyholders of sixty-six and two-thirds percent (66 2/3%) of the outstanding Shares in favor of the adoption of this Agreement is the only vote or approval of the holders of any class or series of capital stock of the Company or any of its Subsidiaries which is necessary to adopt this Agreement and approve the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Tb Woods Corp), Merger Agreement (Altra Holdings, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject (in the case of the Merger) to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to perform its obligations hereunder and consummate the transactions contemplated herebyTransactions, including the Merger. The execution execution, delivery and delivery performance by the Company of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors and (in the case of the Company andMerger, except for the (i) receipt of the Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, DSOS) no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated herebyTransactions. The On or prior to the date hereof, the Company Board of Directors of the Company has determined unanimously (x) resolved that the transactions contemplated by this Agreement and the Transactions, including the Merger and the Pre-Merger Special Dividend, are fair to and in the best interest interests of the Company and its the stockholders and of the Company, (y) to recommend that such stockholders vote in favor of the approval approved and adoption of declared advisable this Agreement and the MergerTransactions, including the Merger and the Pre-Merger Special Dividend, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the DGCL, and (z) has adopted a resolution to make, subject to Section 5.3, the Company Board Recommendation. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, fraudulent transfer, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting or relating to the enforcement of creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”), NASDAQ and (vi) the approvals matters set forth on in Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company or any of the Company’s Company Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s Company Subsidiaries, other than Company Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Company Subsidiary or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Company Subsidiaries or any of their respective properties or assets, other than, than in the case of clauses (i), (ii) and (iii), any such violation, breach, conflict, default, termination, modification, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Willis Group Holdings PLC), Merger Agreement (Towers Watson & Co.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or other Laws affecting the enforcement of creditors’ rights generally or and to general equity principles.
(b) The Board of Directors of the Company, at a meeting duly called and held, duly and unanimously adopted resolutions (i) determining that the terms of the Merger and the other transactions contemplated by principles governing this Agreement are advisable, fair to and in the availability best interests of equitable remediesthe Company and its stockholders, (ii) approving this Agreement, the Merger and the other transactions contemplated by this Agreement, and (iii) recommending that the Company’s stockholders approve the Merger and the transactions contemplated hereby (the “Company Recommendation”).
(bc) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAMGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (vvi) any applicable non-United States competitionthe FPA, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 the approval of the European CommunityFederal Energy Regulatory Commission (the “FERC”) thereunder (the “FERC Approval”), (vii) the Atomic Energy Act of 1954, as amended (the “ECMRAtomic Energy Act”), and the approval of the Nuclear Regulatory Commission (the “NRC”) thereunder (the “NRC Approval”), (viviii) the approvals set forth on Section 3.3(b) rules and regulations of the Company Disclosure ScheduleMaryland Public Service Commission (the “MPSC”), and (viiix) the rules and regulations of the New York Stock Exchange State Public Service Commission (the “NYSENYPSC”), (x) the rules and regulations of the Public Utility Commission of Texas (the consents “PUCT”), (xi) pre-approvals of license transfers by the Federal Communications Commission (the “FCC”), and (xii) the approvals referenced set forth in clauses Section 4.3(c) of the Company Disclosure Schedule (i) through (vii) above being collectively referred to herein as collectively, the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 5.3(c), no authorization, consent consent, Order, license, permit or approval of, or registration, declaration, notice or filing with, any United States federal, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect material impact on the Company.
(cd) The execution and delivery of this Agreement by the Company of this Agreement does not, and and, except as described in Section 4.3(c), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, concession, franchise, right or license binding upon the Company Company, any of its Subsidiaries or any of the Company’s Subsidiaries Company Joint Venture or result in the creation of any Lien Lien, other than a Company Permitted Lien, upon any of the properties or assets of the Company Company, any of its Subsidiaries or any of the Company’s SubsidiariesCompany Joint Venture, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws Organizational Documents of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, its Subsidiaries or any Company Joint Venture or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect material impact on the Company.
(e) This Section 4.3 excludes any representation or warranty by the Company or any of its Subsidiaries or any Company Joint Venture with respect to matters relating to or arising under Environmental Laws or Hazardous Materials, which are addressed in Section 4.8.
Appears in 2 contracts
Samples: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite the corporate power and authority to enter into this Agreement and, subject and to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to consummate the transactions contemplated hereby, including the Mergercarry out its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for obtaining the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareMerger, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) taken all appropriate action so that neither Alcoa nor Merger Sub will be an "interested stockholder" within the meaning of Section 203 of the DGCL by virtue of Alcoa, Merger Sub and the Company entering into this Agreement and consummating the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Mergerhereby. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties heretoAlcoa and Merger Sub, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than Except for the filings, permits, authorizations, consents and approvals set forth in connection with or in compliance with (iSection 3.3(b) the provisions of the DGCL Company Disclosure Schedule or as may be required under, and the DLLCAother applicable requirements of, (ii) the Securities Act of 1933, as amended (the “"Securities Act”"), the Securities Exchange Act of 1934, as amended (iii) the "Exchange Act"), (iv) the XxxxHart-Xxxxx-Xxxxxx Antitrust Xxxitrust Improvements Act of 1976, as amended (the “"HSR Act”"), state securities or blue sky laws and the DGCL (v) any applicable non-United States competitionthe "Company Required Approvals"), antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 none of the European Communityexecution, as amended (delivery or performance of this Agreement by the “ECMR”)Company, (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals hereby or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The execution and delivery compliance by the Company with any of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) conflict with or result in any breach of any provision of the certificate of incorporation, by-laws or similar organizational documents of the Company or any of 11 20 its Subsidiaries, (ii) require any filing with, or permit, authorization, consent or approval of, any federal, regional, state or local court, arbitrator, tribunal, administrative agency or commission or other governmental or other regulatory authority or agency, whether U.S. or foreign (a "Governmental Entity"), (iii) result in a violation or breach of, or default constitute (with or without due notice or lapse of time, time or both) under, a default (or give rise to a any right of termination, amendment, cancellation or acceleration acceleration) under, any of the terms, conditions or provisions of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreementlicense, contract, instrument, permit, concession, franchise, right agreement or license binding upon other instrument or obligation to which the Company or any of the Company’s its Subsidiaries is a party or result in the creation of any Lien upon by which any of the them or any of their properties or assets of may be bound (the "Company Agreements"), or (iv) violate any of the Company’s Subsidiariesorder, (ii) conflict with writ, injunction, decree, judgment, permit, license, ordinance, law, statute, rule or result in any violation of any provision of the certificate of incorporation or by-laws of regulation applicable to the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s its Subsidiaries or any of their respective properties or assets, other than, in excluding from the case of foregoing clauses (iii), (iii) and (iii)iv) such violations, any such violation, conflict, default, right, loss breaches or Lien that has not had, and would not reasonably be expected to havedefaults which are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect on the CompanyCompany or prevent or substantially delay the consummation of the transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Alcoa Inc), Merger Agreement (Reynolds Metals Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into execute, deliver and perform this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), and to consummate the transactions contemplated hereby, including the Merger. The execution and delivery Transactions (subject to adoption of this Agreement by holders of at least a majority of the issued and outstanding shares of Company Common Stock entitled to vote thereon (the “Company Stockholder Approval”)). The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company or vote of the Company’s stockholders are necessary to authorize the consummation of the transactions contemplated herebyTransactions, other than the Company Stockholder Approval. The Company Board of Directors has unanimously (i) determined that the terms of this Agreement and the Transactions are fair to, and in the best interests of, the Company has and its stockholders, (ii) determined (x) that the transactions contemplated by this Agreement are fair to and it is in the best interest of the Company and its stockholders to enter into, and declared advisable, this Agreement, (iii) approved the execution and delivery by the Company of this Agreement (including the agreement of merger, as such term is used in Section 251 of the DGCL), the performance by the Company of its covenants and agreements contained herein and the consummation of the Transactions upon the terms and subject to the conditions contained herein and (yiv) resolved to recommend that such stockholders vote in favor the holders of shares of Company Common Stock adopt this Agreement at any meeting of the approval Company’s stockholders held for such purpose and adoption of this Agreement and the Merger. any adjournment or postponement thereof.
(b) This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the legal, valid and binding agreement of the other parties hereto, constitutes a valid Company and binding agreement of the Company, is enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as such enforcement may be limited by subject to applicable bankruptcy, reorganization, insolvency, reorganization moratorium or other similar Laws affecting the enforcement of creditors’ creditor’s rights generally or by principles governing and the availability of equitable remediesrelief (the “Enforceability Exceptions”).
(bc) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCADelaware Secretary, (ii) the filing of the Form S-4 (including the Proxy Statement/Prospectus) with the SEC and any amendments or supplements thereto and declaration of effectiveness of the Form S-4, (iii) the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), (iv) the Securities Act of 1933, as amended amended, and the rules and regulations promulgated thereunder (the “Securities Act”), (iiiv) applicable state securities, takeover and “blue sky” laws, (vi) the Exchange Actrules and regulations of Nasdaq, (ivvii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”)) and any other requisite clearances or approvals under any other applicable Antitrust Laws, (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viviii) the approvals set forth on in Section 3.3(b3.3(c)) of the Company Disclosure Schedule, and Schedule (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (viiviii) above being collectively referred to herein as collectively, the “Company Approvals”), and (ix) such other authorizations, consents, orders, licenses, permits, approvals, registrations, declarations, notices and filings, the failure of which to be obtained, given or made would not reasonably be expected to have a Company Material Adverse Effect or prevent or materially impede, interfere with, hinder or delay the consummation of any of the Transactions, no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyTransactions.
(cd) The execution and delivery by the Company of this Agreement does not, and (assuming the Company Approvals are obtained) the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness Contract or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license Governmental Authorization binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges or security interests (each, a “Lien”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Company Subsidiary Organizational Documents or (iii) conflict with or violate any applicable Laws applicable to which the Company or any of the Company’s its Subsidiaries or any of their respective properties or assetsis subject, other thanexcept, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on or prevent or materially impede, interfere with, hinder or delay the Companyconsummation of the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Endologix Inc /De/), Merger Agreement (TriVascular Technologies, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Assuming the accuracy of the representations set forth in Section 4.14(a), the Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to perform its obligations hereunder and consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board of Directors and, assuming the accuracy of the Company and, representations in Section 4.14(a) and except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger and the Subsequent Certificate of Merger with the Secretary of State of the State of DelawareState, no other corporate proceedings on the part of the Company are necessary to authorize authorize, adopt or approve, as applicable, this Agreement or to consummate the consummation of Combination and the other transactions contemplated hereby. The Board of Directors of the Company Board, at a meeting duly called and held, has determined unanimously (x) determined that this Agreement and the transactions contemplated by this Agreement hereby are fair to advisable and in the best interest of the Company and its stockholders and stockholders, (y) as of the date of this Agreement, determined to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Mergerapproval of the Combination and (z) approved the execution, delivery and performance of this Agreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than No consent, approval, clearance, waiver, permit or order (each, a “Consent”) of or from, or registration, declaration, notice or filing made to or with any Federal, national, state, provincial or local, whether domestic or foreign, government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, whether domestic, foreign or supranational (a “Governmental Entity”), is required to be obtained or made with respect to the Company, any Subsidiary of the Company or any Company License (for the avoidance of doubt, this Section 3.3(b) shall not be deemed to address those Consents required to be obtained or made with respect to any Parent License, or with respect to, or due to the change of control of, Parent or any Subsidiary of Parent, which are addressed in Section 4.3(b)) in connection with its execution and delivery of this Agreement or in compliance with its performance of its obligations hereunder or the consummation by it of the Combination and the other transactions contemplated by this Agreement, other than (i) (A) the provisions filing with the Securities and Exchange Commission (the “SEC”) of the DGCL and the DLLCAJoint Proxy Statement in definitive form, (iiB) the filing with the SEC, and declaration of effectiveness under the Securities Act of 1933, as amended amended, and the related rules and regulations promulgated thereunder (the “Securities Act”), of the Form S-4 and (iiiC) the filing with the SEC of such reports under, and such other compliance with, the Securities Exchange Act of 1934, as amended, and the related rules and regulations promulgated thereunder (the “Exchange Act”), and the Securities Act as may be required in connection with this Agreement, the Combination and the other transactions contemplated by this Agreement, (ivii) compliance with and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (viii) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 the filing of the European CommunityCertificate of Merger and the Subsequent Certificate of Merger with the Secretary of State and appropriate documents with the relevant authorities of the other jurisdictions in which Parent and the Company are qualified to do business, as amended (iv) such Consents from, or registrations, declarations, notices or filings made to or with, the U.S. Federal Communications Commission or any successor Governmental Entity (the “ECMRFCC”) as are required in order to lawfully effect the transfer of control of the Company Licenses or as are otherwise necessary to consummate and make effective the Combination and the other transactions contemplated by this Agreement, each of which is listed in Section 3.3(b)(iv) of the Company Disclosure Letter (the “Company FCC Consents”), (v) such Consents from, or registrations, declarations, notices or filings made to or with, state public service or state public utility commissions (collectively, “State Regulators”) as are required in order to lawfully effect the transfer of control of the Company Licenses or as are otherwise necessary to consummate and make effective the Combination and the other transactions contemplated by this Agreement, each of which is listed in Section 3.3(b)(v) of the Company Disclosure Letter (the “Company PSC Consents”), (vi) the such filings with and approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, NASDAQ as are required to permit the consummation of the Combination and (vii) the rules such other matters that have not had and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does do not, and the consummation of the Combination and the other transactions contemplated hereby and compliance with the provisions hereof will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractcontract or grant agreement (collectively, “Contracts”) (including any Company Material Contracts but excluding any Company Benefit Plans, which are covered under Section 3.9), instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries its Subsidiaries, or result in the creation of any Lien upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws bylaws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Subsidiaries or (iii) subject to the Consents, filings and other matters referred to in Section 3.3(b), conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 2 contracts
Samples: Merger Agreement (EarthLink Holdings Corp.), Merger Agreement (Windstream Holdings, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and each other document to be entered into by the Company in connection with the transactions contemplated hereby (together with this Agreement, the “Company Transaction Documents”) and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 approval of this AgreementAgreement by a majority of the votes cast by all shareholders entitled to vote thereon (the “Company Shareholder Approval”), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of the Company and, except for the Company Shareholder Approval (i) Company Stockholder Approval and (ii) assuming the filing accuracy of the Certificate of Merger with the Secretary of State of the State of Delawarerepresentations and warranties set forth in Section 4.21), no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) unanimously resolved to recommend that the transactions contemplated by Company’s shareholders adopt this Agreement are fair to and in (the best interest “Company Recommendation”). Each of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement Transaction Documents has been duly and validly executed and delivered by the Company and, assuming this Agreement each such Company Transaction Documents constitutes a the legal, valid and binding agreement of the other parties heretocounterparty thereto, each of the Company Transaction Documents constitutes a the legal, valid and binding agreement of the Company, Company and is enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions Subchapter 19C of the DGCL and the DLLCAPBCL, (ii) the U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder (the “Exchange Act”), (iii) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iiiiv) applicable state securities, takeover and “blue sky” laws, (v) the rules and regulations of the New York Stock Exchange Act(“NYSE”), (ivvi) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), (v) and any applicable non-United States competitionantitrust, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 competition or similar laws outside of the European CommunityUnited States, as amended (vii) the Federal Power Act, 16 U.S.C. §§ 791a-825r and the regulations promulgated by the Federal Energy Regulatory Commission (the “ECMRFERC”)) thereunder, and (viviii) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of ETP and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority authority, independent system operator, regional transmission organization, other market administrator, or national, regional or state reliability organization (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, orders, licenses, permits, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not reasonably be expected to materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and (assuming the Company Approvals are obtained) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Company Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, except in the case of clauses (i) and (iii)) for such losses, any such violationsuspensions, conflictlimitations, defaultimpairments, rightconflicts, loss violations, defaults, terminations, cancellation, accelerations, or Lien that has not had, and Liens as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Energy Transfer Partners, L.P.), Merger Agreement (Sunoco Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the Merger and the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company Company, acting upon the unanimous recommendation of the Special Committee, and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareShareholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the Merger and the transactions contemplated hereby. The Each of the Special Committee and the Board of Directors of the Company has Company, acting upon the unanimous recommendation of the Special Committee, determined (x) that the Merger and the transactions contemplated by this Agreement hereby are fair to and in the best interest interests of the Company Public Shareholders, and its stockholders approved and adopted this Agreement. As of the date hereof, each of the Special Committee and the Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, has unanimously (yas to those Board Members voting) resolved to recommend that such stockholders vote in favor of the approval and adoption of Company’s Public Shareholders approve this Agreement Agreement, the Merger and the Mergertransactions contemplated hereby, subject to the terms and conditions set forth herein (including the Special Committee’s recommendation, the “Recommendation”). This Agreement has been duly and validly executed and delivered by the Company andCompany, and assuming this Agreement constitutes a the valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other Laws affecting the enforcement of creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or by principles governing the availability of equitable remediesat law).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCANCBCA, (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), ) and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viiv) the approvals set forth on Section 3.3(b3.4(b)(iv) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States States, foreign, federal, state, provincial or foreign local governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) or other person is necessary necessary, under applicable Law or otherwise, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on or impair in any material respect the Companyability of the Company to perform its obligations hereunder.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the lossloss of any benefit under, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Company Charter Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Subsidiary Documents or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss loss, Lien or Lien failure to obtain consent that has would not had, and have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Waste Industries Usa Inc), Merger Agreement (Goldman Sachs Group Inc/)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board board of Directors directors of the Company (“Board of Directors”) and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that to such stockholders vote in favor of the approval and adoption of that they adopt this Agreement and the Mergertransactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934, as amended (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (iv) the Communications Act of 1934, as amended, and applicable rules and regulations thereunder (the “Communications Act”), including any rules, regulations and orders of the FCC (the “FCC Rules”), (v) any applicable non-United States competitionstate public utility Laws and rules, antitrust regulations and investment lawsorders of any state public utility commissions (“PUCs”) or similar foreign public utility Laws and rules, including regulations and orders of any required notifications and filings under Council Regulation (ECregulatory bodies regulating telecommunications businesses, as set forth on Section 3.3(b)(v) 139/2004 of the European Community, as amended (the “ECMR”)Company Disclosure Schedule, (vi) the rules and regulations of the NASDAQ, (vii) any state securities or “blue sky” laws and (viii) the approvals set forth on Section 3.3(b3.3(b)(viii) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Regulatory Approvals”), no authorization, consent or approval of, or filing with, any United States U.S. or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, each a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected likely to have, individually or in the aggregate, a Material Adverse Effect on or significantly impair or delay the Companyconsummation of the transactions contemplated hereby.
(c) The execution Except as set forth in Section 3.3(c) of the Company Disclosure Schedule, and subject to the receipt of the Company Regulatory Approvals, the execution, delivery and performance by the Company of this Agreement does not, and the consummation of the Merger and the other transactions contemplated hereby and compliance with the provisions hereof will not (i) constitute or result in any breach, violation of, or a termination or default (with or without notice or lapse of time, or both) under, cause any additional payments under or give rise to a right of termination, cancellation or acceleration of any obligation obligation, or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permitPermit, concession, franchise, right or license (each, a “Contract” and collectively, “Contracts”) binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien Liens upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documentslaws, in each case, case as amended, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s its Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected likely to have, individually or in the aggregate, a Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (At&t Inc.), Merger Agreement (Centennial Communications Corp /De)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and each other document to be entered into by the Company in connection with the transactions contemplated hereby (together with this Agreement, the “Company Transaction Documents”) and, subject to receipt of approval of the Company Stockholder Approval (as defined in Section 3.20 adoption of this AgreementAgreement by holders of Company Common Stock representing two-thirds of the voting power thereof (the “Company Shareholder Approval”), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Company Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareShareholder Approval, no other corporate proceedings on the part of the Company or vote of the Company’s securityholders are necessary to authorize the consummation of the transactions contemplated hereby. The Company Board of Directors of the Company has determined unanimously (xi) resolved to recommend that the transactions contemplated by Company’s shareholders adopt this Agreement (the “Company Recommendation”), (ii) determined that this Agreement and the Merger are fair to and in the best interest interests of the Company and its stockholders and Company’s shareholders, (yiii) to recommend that such stockholders vote in favor of the approval and adoption of approved this Agreement and the Merger, and (iv) directed that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s shareholders. This Agreement Each of the Company Transaction Documents has been duly and validly executed and delivered by the Company and, assuming this Agreement each such Company Transaction Document constitutes a the legal, valid and binding agreement of the other parties heretocounterparty thereto, each of the Company Transaction Documents constitutes a the legal, valid and binding agreement of the Company, Company and is enforceable against the Company in accordance with its terms (terms, except as such enforcement may be subject to the extent that enforceability may be limited limitation of such enforcement by applicable (1) the effect of bankruptcy, insolvency, reorganization reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting the enforcement of or relating to creditors’ rights generally or by principles (2) the rules governing the availability of specific performance, injunctive relief or other equitable remediesremedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCASecretary of State of the State of Ohio, (ii) the U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder (the “Exchange Act”), (iii) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iiiiv) applicable state securities, takeover and “blue sky” laws, (v) the Exchange Actrules and regulations of the NYSE, (ivvi) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), (v) and any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 Competition Laws outside of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure ScheduleUnited States, and (vii) subject to the rules and regulations accuracy of the New York Stock Exchange (the “NYSE”) (the consents representations and approvals referenced warranties of Parent and Merger Sub in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”Section 4.2(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, orders, licenses, permits, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not reasonably be expected to havematerially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or would not, individually or in the aggregate, be reasonably expected to have a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and (assuming the Company Approvals are obtained) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (excluding, in each case, transfer restrictions of general applicability pursuant to securities Laws) (each, a “Lien”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of its Subsidiaries, except for such losses, suspensions, limitations, impairments, conflicts, violations, defaults, terminations, cancellation, accelerations, or Liens as would not, individually or in the Company’s Subsidiariesaggregate, be reasonably expected to have a Company Material Adverse Effect, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any applicable Laws applicable to the Company except for such conflict or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and violation as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Rti International Metals Inc), Merger Agreement (Alcoa Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Buyer (and any of its permitted assignees as set forth in Section 11.8) has all requisite corporate power and authority to enter into this Agreement and, subject and the Ancillary Agreements to receipt be executed and delivered by Buyer (and any of the Company Stockholder Approval (its permitted assignees as defined set forth in Section 3.20 of this Agreement), 11.8) and to consummate the transactions contemplated hereby, including the Mergerhereby and thereby. The execution and delivery of this Agreement and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted assignees as set forth in Section 11.8) and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of the Company andBuyer (and any of its permitted assignees as set forth in Section 11.8), except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to hereby and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Mergerthereby. This Agreement has been been, and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted assignees as set forth in Section 11.8) will, as of the Closing, have been, duly and validly executed and delivered by the Company Buyer and, assuming this Agreement constitutes a constitutes, and as of the Closing the Ancillary Agreements to be executed and delivered by the applicable Seller Entities will constitute the valid and binding agreement of such Seller Entities, this Agreement constitutes, and as of the other parties heretoClosing, constitutes a the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted assignees as set forth in Section 11.8) will constitute, the valid and binding agreement of the CompanyBuyer (and any of its permitted assignees as set forth in Section 11.8), enforceable against the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADelaware General Corporation Law, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, Act and (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976and other federal and state competition laws (collectively, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Buyer Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) of the transactions contemplated by this AgreementAgreement and the Ancillary Agreements, except for such authorizations, consents, approvals or filings filings, that, if not obtained or made, would not reasonably be expected to have, individually materially impair or in delay the aggregate, a Material Adverse Effect on consummation of the Companytransactions contemplated hereby.
(c) The execution and delivery by the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) of this Agreement and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted assignees as set forth in Section 11.8) does not, and and, except as described in Section 5.2(b), the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) or any of the Company’s its Subsidiaries or result in the creation of any Lien, other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves has been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of Buyer (and any of its permitted assignees as set forth in Section 11.8) or notes thereto or securing liabilities reflected on such balance sheet or (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of Buyer (and any of its permitted assignees as set forth in Section 11.8) and is immaterial in amount, upon any of the properties or assets of the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amended, of Buyer (and any of the Company’s Subsidiaries, its permitted assignees as set forth in Section 11.8) or any of its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, righttermination, cancellation, acceleration, loss or Lien that has not had, and would not reasonably be expected to have, individually materially impair or in delay the aggregate, a Material Adverse Effect on consummation of the Companytransactions contemplated hereby.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Medianews Group Inc), Stock and Asset Purchase Agreement (McClatchy Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into execute and deliver this Agreement and each other document to be entered into by the Company in connection with the transactions contemplated hereby (together with this Agreement, the “Company Transaction Documents”) and, subject to receipt of approval of this Agreement by the holders of a majority of the shares of Company Common Stock entitled to vote thereon (the “Company Stockholder Approval (as defined in Section 3.20 of this AgreementApproval”), to consummate the transactions contemplated hereby, including the Merger, and thereby. The execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of the Company and, except for the Company Stockholder Approval (assuming the accuracy of the representations and warranties set forth in Section 4.19), no other corporate action on the part of the Company or vote of the Company’s stockholders are necessary to authorize the execution and delivery by the Company of this Agreement and the other Company Transaction Documents and the consummation of the Merger and the other transactions contemplated hereby and thereby. The Board of Directors of the Company has unanimously (i) resolved to recommend that the Company’s stockholders adopt this Agreement (the “Company Stockholder Approval Recommendation”), (ii) determined that this Agreement and the Merger are advisable and fair to and in the best interests of the Company’s stockholders, (iii) approved this Agreement and the Merger, and (iiiv) directed that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders. Each of the Company Transaction Documents has been duly and validly executed and delivered by the Company and, assuming each such Company Transaction Document constitutes the legal, valid and binding agreement of the counterparty thereto, each of the Company Transaction Documents constitutes the legal, valid and binding agreement of the Company and is enforceable against the Company in accordance with its terms, except as such enforcement may be subject to (A) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting or relating to creditors’ rights generally or (B) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), (iii) the U.S. Securities Act of 1933, as amended amended, and the rules and regulations promulgated thereunder (the “Securities Act”), (iiiiv) applicable state securities, takeover and “blue sky” laws, (v) the rules and regulations of the New York Stock Exchange Act(“NYSE”), (ivvi) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), (v) and any applicable non-United States competitionantitrust, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 competition or similar laws outside of the European CommunityUnited States, as amended and (the “ECMR”), (vivii) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.2(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority authority, independent system operator, regional transmission organization, other market administrator, or national, regional or state reliability organization (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, orders, licenses, permits, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not reasonably be expected to materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The Except as set forth in Section 3.3(c) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement does do not, and (assuming the Company Approvals are obtained) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractcontract (including, without limitation, any Oil and Gas Lease or Oil and Gas Contract), instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Company Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, except in the case of clauses (i) and (iii), any for such violationlosses, conflictsuspensions, defaultlimitations, rightimpairments, loss conflicts, violations, defaults, terminations, cancellations, accelerations, or Lien that has not had, and Liens as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Freeport McMoran Copper & Gold Inc), Merger Agreement (Plains Exploration & Production Co)
Corporate Authority Relative to this Agreement; No Violation. (ai) The Company Xxxxxx has all requisite corporate power and authority to enter into this Agreement and the Expenses Reimbursement Agreement and, subject (in the case of this Agreement) to receipt of the Company Stockholder Xxxxxx Shareholder Approval (as defined and, in Section 3.20 the case of this Agreementthe Holdco Distributable Reserves Creation, to approval of the Xxxxxx Distributable Reserves Resolution by the Xxxxxx Shareholders and the Xxxxx Distributable Reserves Resolution by the Xxxxx Shareholders, to the adoption by the shareholders of Holdco of the resolution contemplated by Clause 7.10(c)(i) and to receipt of the required approval by the High Court), to consummate the transactions contemplated herebyhereby and thereby, including the MergerAcquisition. The execution and delivery of this Agreement and the Expenses Reimbursement Agreement and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized authorised by the Xxxxxx Board of Directors of the Company and, except for (A) the (i) Company Stockholder Xxxxxx Shareholder Approval and (iiB) the filing of the Certificate of Merger required documents and other actions in connection with the Secretary of State Scheme with, and to receipt of the State required approval of Delawarethe Scheme by, the High Court, no other corporate proceedings on the part of the Company Xxxxxx are necessary to authorize authorise the consummation of the transactions contemplated hereby. The On or prior to the date hereof, the Xxxxxx Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest interests of Xxxxxx and the Xxxxxx Shareholders and has adopted a resolution to make, subject to Clause 5.3 and to the obligations of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of Xxxxxx Board under the approval and adoption of this Agreement and Takeover Rules, the MergerScheme Recommendation. This Agreement has been duly and validly executed and delivered by the Company Xxxxxx and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoXxxxx Parties, constitutes a the valid and binding agreement of the CompanyXxxxxx, enforceable against the Company Xxxxxx in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(bii) Other than in connection with or in compliance with (iA) the provisions of the DGCL Companies Acts, (B) the Takeover Panel Act and the DLLCATakeover Rules, (iiC) the Securities Act of 1933, as amended (the “Securities Act”), (iiiD) the Exchange Act, (ivE) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (vF) any applicable non-United States competitionrequirements under the EC Merger Regulation, antitrust and investment laws(G) any applicable requirements of other Antitrust Laws, including (H) any required notifications and filings under Council Regulation (EC) 139/2004 applicable requirements of the European Community, as amended NYSE and (the “ECMR”), (viI) the approvals Clearances set forth on Section 3.3(bClause 6.1(c)(ii) of the Company Xxxxxx Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorizationauthorisation, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyRelevant Authority is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company Xxxxxx of the transactions contemplated by this Agreement, except for such authorizationsauthorisations, consents, approvals or filings (I) that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Xxxxxx Material Adverse Effect or (II) as may arise as a result of facts or circumstances relating to Xxxxx or its Affiliates or Laws or contracts binding on the CompanyXxxxx or its Affiliates.
(ciii) The execution and delivery by the Company Xxxxxx of this Agreement does and the Expenses Reimbursement Agreement do not, and and, except as described in Clause 6.1(c)(ii), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (iA) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company Xxxxxx or any of the Company’s Xxxxxx’x Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties properties, rights or assets of the Company Xxxxxx or any of the Company’s Xxxxxx’x Subsidiaries, other than Xxxxxx Permitted Liens, (iiB) conflict with or result in any violation of any provision of the certificate Organisational Documents of incorporation Xxxxxx or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Xxxxxx’x Subsidiaries or (iiiC) conflict with or violate any Laws applicable to the Company Xxxxxx or any of the Company’s Xxxxxx’x Subsidiaries or any of their respective properties or assets, other than, (I) in the case of sub-clauses (iA), (B) (with respect to Subsidiaries that are not Significant Subsidiaries) and (iiiC), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Xxxxxx Material Adverse Effect Effect, and (II) as may arise as a result of facts or circumstances relating to Xxxxx or its Affiliates or Laws or contracts binding on the CompanyXxxxx or its Affiliates.
Appears in 2 contracts
Samples: Transaction Agreement (Cooper Industries PLC), Transaction Agreement (Eaton Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Shareholder Approval (as defined in Section 3.20 of this Agreementif required by applicable Law to consummate the Merger), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) the Company Stockholder Shareholder Approval (if required by applicable Law to consummate the Merger) and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareFlorida, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid has been duly executed by Parent and binding agreement of the other parties heretoMerger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability of equitable remediesat Law).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAFBCA, or any applicable Florida anti-takeover or investor protection statute, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iviii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), ) and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viiv) the approvals set forth on Section 3.3(b4.4(b) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to havenot, individually or in the aggregate, be material to the Company and its Subsidiaries taken as a Material Adverse Effect on the Companywhole.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, document of the Company or any of the Company’s Subsidiaries, its Significant Subsidiaries or (iii) assuming that the consents and approvals referred to in Section 4.4(b) are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not reasonably be expected to havenot, individually or in the aggregate, have or be reasonably expected to have a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Bankrate Inc), Merger Agreement (Bankrate Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject (in the case of the Merger) to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to perform its obligations hereunder and consummate the transactions contemplated herebyTransactions, including the Merger. The execution execution, delivery and delivery performance by the Company of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors and (in the case of the Company andMerger, except for the (i) receipt of the Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, DSOS) no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated herebyTransactions. The On or prior to the date hereof, the Company Board of Directors of the Company has determined unanimously (x) resolved that the transactions contemplated by this Agreement and the Transactions, including the Merger, are fair to and in the best interest interests of the Company and its stockholders and stockholders, (y) to recommend that such stockholders vote in favor of the approval approved and adoption of declared advisable this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the DGCL, and (z) has adopted a resolution to make, subject to Section 5.3, the Company Board Recommendation. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, fraudulent transfer, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting or relating to the enforcement of creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”), NYSE and (vi) the approvals matters set forth on in Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company or any of the Company’s Company Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s Company Subsidiaries, other than Company Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Company Subsidiary or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Company Subsidiaries or any of their respective properties or assets, other than, than in the case of clauses (i), (ii) and (iii), any such violation, breach, conflict, default, termination, modification, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Waste Connections, Inc.), Merger Agreement (Progressive Waste Solutions Ltd.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to the receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated herebyby this Agreement, including the Merger. The execution execution, delivery and delivery performance of this Agreement by the Company and the consummation of the transactions contemplated hereby Merger have been duly and validly authorized by the Company Board of Directors of the Company and, except for other than the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delawareother than as set forth in Section 3.3(d), no other corporate proceedings on the part of the Company or vote of the Company’s stockholders are necessary to authorize the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated herebyMerger. The Company Board of Directors has unanimously (i) determined that the terms of this Agreement and the Merger are fair to, and in the best interests of, the Company and its stockholders, (ii) determined that it is in the best interests of the Company has determined and its stockholders, and declared it advisable, to enter into this Agreement, (xiii) duly and validly approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Merger upon the terms and subject to the conditions contained herein, (iv) directed that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders and (v) resolved to make the Company Recommendation and, subject to Section 5.4, to include the Company Recommendation in the Proxy Statement/Prospectus.
(b) The affirmative vote of the holders of a majority of the issued and outstanding shares of Company Common Stock in favor of the adoption of this Agreement (the “Company Stockholder Approval”) is the only vote of the holders of any class or series of Company capital stock that is necessary under applicable Law and the Company Certificate and Company Bylaws to adopt, approve or authorize this Agreement, for the Company to engage in the transactions contemplated by this Agreement are fair and to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and consummate the Merger. .
(c) This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the legal, valid and binding agreement of the other parties hereto, constitutes a valid Company and binding agreement of the Company, is enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting the enforcement of creditors’ rights generally or by principles governing and (ii) the availability remedy of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(bd) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCADelaware Secretary, (ii) the filing of the Form S-4 (including the Proxy Statement/Prospectus) with the SEC and any amendments or supplements thereto and declaration of effectiveness of the Form S-4, (iii) the U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder (the “Exchange Act”), (iv) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iiiv) applicable state securities, takeover and “blue sky” laws, (vi) the Exchange Actrules and regulations of the Nasdaq, (ivvii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”)) and any other requisite clearances or approvals under any other applicable Antitrust Laws, (vviii) any applicable non-United States competition, antitrust the Company Stockholder Approval and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viix) the approvals set forth on in Section 3.3(b3.3(d) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementMerger, except for where the failure to obtain such authorizations, consents, approvals approvals, authorizations or filings thatpermits of, if not obtained or madeto make such filings, registrations with or notifications to, any Governmental Entity, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on or prevent the Companyconsummation of the Merger.
(ce) The execution and delivery by the Company of this Agreement does not, and (assuming the Company Approvals are obtained) the consummation of the transactions contemplated hereby Merger and compliance with the provisions hereof of this Agreement will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (default, with or without notice or lapse of time, time or both) , under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license Contract that is binding upon the Company or any of the Company’s its Subsidiaries or by which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Company Subsidiary Organizational Documents or (iii) conflict with or violate any applicable Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other thanexcept, in the case of clauses (i) and (iii), any for such violationlosses, conflictsuspensions, defaultlimitations, rightimpairments, loss conflicts, violations, defaults, terminations, cancellation, first offers, first refusals, modifications, accelerations, losses of benefits or Lien that has not had, and Liens as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on or to prevent, materially delay or materially impair the Companyability of the Company to perform its obligations under this Agreement or to consummate the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Analog Devices Inc), Merger Agreement (Linear Technology Corp /Ca/)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company TiVo has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company TiVo Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the MergerTransactions. The execution TiVo Board at a duly held meeting has (i) determined that it is in the best interests of TiVo and its stockholders, and declared it advisable, to enter into this Agreement, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly Transactions, including the TiVo Merger, and validly authorized by thereby, and (iii) resolved to recommend that the Board stockholders of Directors TiVo approve the adoption of this Agreement (the “TiVo Recommendation”) and directed that such matter be submitted for consideration of the Company and, except stockholders of TiVo at the TiVo Stockholders Meeting. Except for the (i) Company TiVo Stockholder Approval and (ii) the filing of the TiVo Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company TiVo are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the MergerTransactions. This Agreement has been duly and validly executed and delivered by the Company TiVo and, assuming this Agreement constitutes a the valid and binding agreement of Rovi, Parent and the other parties heretoMerger Subs, constitutes a the valid and binding agreement of the CompanyTiVo, enforceable against the Company TiVo in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or other Laws affecting the enforcement of creditors’ rights generally or by and to general equity principles governing (the availability of equitable remedies“Bankruptcy and Equity Exception”).
(b) Other than Assuming that on the date of this Agreement neither Rovi nor any of its “affiliates” or “associates” is an “interested stockholder” of TiVo (each term, as defined in connection with DGCL Section 203), the only vote of holders of any class or in compliance with (i) series of TiVo Capital Stock necessary to adopt this Agreement and to approve the provisions TiVo Merger is the adoption of this Agreement by the holders of a majority of the DGCL shares of TiVo Common Stock outstanding and the DLLCA, (ii) the Securities Act of 1933, as amended entitled to vote thereon (the “Securities ActTiVo Stockholder Approval”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 . The affirmative vote of the European Communityholders of TiVo Capital Stock is not necessary to consummate any Transaction other than the TiVo Merger.
(c) The execution, as amended (delivery and performance by TiVo of this Agreement and the “ECMR”), (vi) the approvals set forth on Section 3.3(b) consummation of the Company Disclosure ScheduleMergers by TiVo do not and will not require any consent, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)approval, no authorization, consent authorization or approval permit of, action by, filing with or filing with, notification to any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for the consummation by the Company filing of the transactions contemplated by this AgreementTiVo Certificate of Merger, except for such authorizations(ii) compliance with the applicable requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, consentsas amended (the “HSR Act”) and any foreign antitrust or competition Laws, approvals (iii) compliance with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including the filing of the Joint Proxy Statement/Prospectus, (iv) compliance with the rules and regulations of the National Association of Securities Dealers and NASDAQ, (v) compliance with any applicable foreign or filings thatstate securities or blue sky laws, if not obtained and (vi) the other consents and/or notices set forth on Section 3.3(c) of the TiVo Disclosure Schedule (collectively, clauses (i) through (vi), the “TiVo Specified Approvals”), and other than any consent, approval, authorization, permit, action, filing or made, notification the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, (A) have a TiVo Material Adverse Effect on the Company.
or (cB) The execution and delivery by the Company of this Agreement does not, and prevent or materially delay the consummation of the transactions contemplated hereby and Mergers.
(d) Assuming receipt of or compliance with the provisions hereof TiVo Specified Approvals and the receipt of the TiVo Stockholder Approval, the execution, delivery and performance by TiVo of this Agreement and the consummation by TiVo of the Mergers and the other Transactions do not and will not (i) contravene or conflict with the organizational or governing documents of TiVo or any of its Subsidiaries, (ii) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon or applicable to TiVo or any of its Subsidiaries or any of their respective properties or assets or (iii) result in any violation of, conflict with or default (with or without notice or lapse of time, or both) under, or or, other than with respect to the TiVo Convertible Senior Notes, the TiVo Bond Hedge Options and the TiVo Warrants, give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under under, any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, agreement or other contract, instrumentcommitment instrument or obligation (each, permitincluding all amendments thereto, concession, franchise, right or license a “Contract”) binding upon the Company TiVo or any of the Company’s its Subsidiaries or result in the creation of any a Lien (other than Permitted Liens) upon any of the properties or assets of the Company TiVo or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (iii) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected material to haveTiVo and its Subsidiaries, individually or in the aggregate, taken as a Material Adverse Effect on the Companywhole.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rovi Corp), Merger Agreement (Tivo Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite the corporate power and authority to enter into this Agreement and, subject and to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to consummate the transactions contemplated hereby, including the Mergercarry out its obligations hereunder. The execution and delivery of this Agreement, the Stock Voting Agreement and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval approval and (ii) the filing adoption of the Certificate of Merger with the Secretary of State of the State of Delawarethis Agreement by its stockholders, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has taken all necessary and appropriate action so that Section 203 of the DGCL will be inapplicable to this Agreement, the Stock Voting Agreement and the transactions contemplated hereby and thereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) and, except as otherwise may be required to comply or act in a manner consistent with its fiduciary duties under the DGCL, to recommend that to such stockholders vote in favor of the approval that they approve and adoption of adopt this Agreement and the MergerAgreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, this Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws laws affecting the enforcement of creditors’ ' rights generally generally, or by principles governing the availability of equitable remedies).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “"Securities Act”"), (iii) the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “"HSR Act”"), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications laws and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) securities or blue sky laws of the various states (collectively, the "Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Required Approvals”"), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity body or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings thatfilings, if not obtained the failure to obtain or made, make which would not reasonably be expected to havenot, individually or in the aggregate, have a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, and or substantially impair or delay the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any Lien upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyhereby.
Appears in 2 contracts
Samples: Merger Agreement (Capricorn Investors Iii L P), Merger Agreement (Tcby Enterprises Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Mavericks has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company xxx Xxxxxxxxx Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the MergerMerger and the Stock Issuance. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the xxx Xxxxxxxxx Board of Directors of the Company and, except for the (i) Company xxx Xxxxxxxxx Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company Mavericks are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company Mavericks and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoRockets, constitutes a the legal, valid and binding agreement of the CompanyMavericks, enforceable against the Company Mavericks in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or Enforceability Exceptions (other Laws affecting than any Enforceability Exceptions related to the enforcement Plan of creditors’ rights generally or by principles governing the availability of equitable remediesReorganization).
(b) Other than in connection with Except as may be required under or in compliance with relation to (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iviii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Securities Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (viiiv) the rules and regulations of the New York Stock Exchange NYSE, (v) the HSR Act, (vi) the FPA and the FERC Approval, (vii) the Texas Utilities Code and the rules and regulations of the PUCT and the approval of the PUCT thereunder, (viii) pre-approvals of license transfers by the FCC and (ix) the approvals set forth in Section 5.3(b) of xxx Xxxxxxxxx Disclosure Schedule (the “NYSE”) (the consents and approvals referenced in or other actions contemplated by clauses (i) through (viiix) above being collectively referred to herein as above, collectively, the “Company Mavericks Approvals”), and, subject to the accuracy of the representations and warranties of Rockets in Section 4.3(b), no authorization, consent or approval Consent of, or filing Filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company Mavericks of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals Consents or filings Filings that are not required to be obtained or made prior to the consummation of such transactions or that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Mavericks Material Adverse Effect on or prevent Mavericks from consummating the CompanyMerger.
(c) The execution and delivery by the Company Mavericks of this Agreement does do not, and and, except as described in Section 5.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not not, (i) (A) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, acceleration or acceleration put right of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness Mavericks Material Contract or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or (B) result in the creation of any Lien Liens, other than any Mavericks Permitted Liens, in each case, upon any of the properties or assets of the Company Mavericks or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of Mavericks or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaw, other than, in the case of clauses (i) and (iii)) above, any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Mavericks Material Adverse Effect on or prevent Mavericks from consummating the CompanyMerger.
(d) Xxx Xxxxxxxxx Board has, at a meeting duly called and held, duly adopted resolutions (i) determining that it is in the best interest of Mavericks and xxx Xxxxxxxxx Stockholders to enter into this Agreement, (ii) declaring entry into this Agreement to be advisable, (iii) authorizing and approving Mavericks’ execution, delivery and performance of this Agreement in accordance with its terms and Mavericks’ consummation of the transactions contemplated hereby, including the Merger and the Stock Issuance, (iv) directing that the adoption of this Agreement and the approval of the Stock Issuance be submitted to a vote at a meeting of xxx Xxxxxxxxx Stockholders, and (v) recommending that xxx Xxxxxxxxx Stockholders adopt this Agreement and approve the Stock Issuance (this clause (v), the “Mavericks Recommendation”), which resolutions, as of immediately prior to the execution of this Agreement, have not been rescinded, modified or withdrawn.
Appears in 2 contracts
Samples: Merger Agreement (Vistra Energy Corp), Merger Agreement (Dynegy Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) has all requisite corporate power and authority to enter into this Agreement and, subject and the Ancillary Agreements to receipt be executed and delivered by Buyer (and any of the Company Stockholder Approval (its permitted affiliated assignees as defined set forth in Section 3.20 of this Agreement), 11.8) and to consummate the transactions contemplated hereby, including the Mergerhereby and thereby. The execution and delivery of this Agreement and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of the Company andBuyer (and any of its permitted affiliated assignees as set forth in Section 11.8), except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to hereby and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Mergerthereby. This Agreement has been been, and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) will, as of the Closing, have been, duly and validly executed and delivered by the Company Buyer and, assuming this Agreement constitutes a constitutes, and as of the Closing the Ancillary Agreements to be executed and delivered by the applicable Seller Entities will constitute the valid and binding agreement of such Seller Entities, this Agreement constitutes, and as of the other parties heretoClosing, constitutes a the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) will constitute, the valid and binding agreement of the CompanyBuyer (and any of its permitted affiliated assignees as set forth in Section 11.8), enforceable against the Company Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADelaware General Corporation Law, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, Act and (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976and other federal and state competition laws (collectively, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Buyer Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) of the transactions contemplated by this AgreementAgreement and the Ancillary Agreements, except for such authorizations, consents, approvals or filings filings, that, if not obtained or made, would not reasonably be expected to have, individually materially impair or in delay the aggregate, a Material Adverse Effect on consummation of the Companytransactions contemplated hereby.
(c) The execution and delivery by the Company Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) of this Agreement and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) does not, and and, except as described in Section 5.2(b), the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company Buyer (and any of its permitted affiliated assignees as set forth in Section 11.8) or any of the Company’s its Subsidiaries or result in the creation of any Lien, other than any such Lien upon any (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves has been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the properties ordinary course of business or assets of the Company or any of the Company’s Subsidiaries(C) which is immaterial in amount to Buyer, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amended, of Buyer (and any of the Company’s Subsidiaries, its permitted affiliated assignees as set forth in Section 11.8) or any of its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, righttermination, cancellation, acceleration, loss or Lien that has not had, and would not reasonably be expected to have, individually materially impair or in delay the aggregate, a Material Adverse Effect on consummation of the Companytransactions contemplated hereby.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Medianews Group Inc), Stock and Asset Purchase Agreement (McClatchy Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Each of Parent and Xxxxxx Sub has all requisite corporate power and authority to enter into this Agreement andAgreement, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), perform its obligations hereunder and to consummate the transactions contemplated hereby, including the Mergerby this Agreement. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated hereby by this Agreement, have been duly and validly authorized by the Board boards of Directors directors of the Company Parent and Merger Sub and, except for the (i) Company Stockholder Approval adoption of this Agreement by the sole stockholder of Merger Sub and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Parent or Merger Sub are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the MergerAgreement. This Agreement has been duly and validly executed and delivered by the Company Xxxxxx and Merger Sub and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, constitutes the valid and binding agreement of Parent and Merger Sub, enforceable against the Company each of Parent and Merger Sub in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)Enforceability Exceptions.
(b) Other than in connection The execution, delivery and performance by Xxxxxx and Merger Sub of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement, by Parent and Merger Sub do not and will not require Parent, Merger Sub or their Subsidiaries to procure, make or provide any consent, approval, authorization or permit of, action by, filing with or in compliance with notification to any Governmental Entity or other third party, other than (i) the provisions filing of the DGCL and Certificate of Merger in compliance with the DLLCADGCL, (ii) compliance with the Securities HSR Act of 1933, as amended (the “Securities Act”)and other applicable Antitrust Laws, (iii) the Exchange Actcompliance with any applicable Foreign Investment Law, (iv) compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, Exchange Act and (vii) compliance with the rules and regulations of the New York Stock Exchange Exchange, (v) compliance with any applicable foreign or state securities or blue sky laws and (vi) the “NYSE”other consents and/or notices set forth on Section 4.2(b) of the Parent Disclosure Letter (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as vi), collectively, the “Company Parent Approvals”), no and other than any consent, approval, authorization, consent permit, action, filing or approval of, notification the failure of which to make or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, obtain would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on Effect. As of the date hereof, and assuming the accuracy of the information Made Available to Parent prior to the date of this Agreement by the Company, Parent has no reason to believe that there exists a material likelihood that any Parent Approval will not be granted or received prior to the End Date.
(c) The execution Assuming the receipt of the Parent Approvals, the execution, delivery and delivery performance by the Company Xxxxxx and Merger Sub of this Agreement does not, and the consummation by Parent and Merger Sub of the Merger and the other transactions contemplated hereby by this Agreement, do not and compliance with the provisions hereof will not (i) contravene or conflict with the organizational or governing documents of Parent or any of its Subsidiaries, (ii) contravene or conflict with or constitute a violation of any provision of any Law binding upon or applicable to Parent or any of its Subsidiaries or any of their respective properties or assets, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, concession, franchise, right or license binding upon the Company Parent or any of the Company’s its Subsidiaries or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company Parent or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (iii) and (iii), any such violationcontravention, conflict, violation, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Emerson Electric Co), Merger Agreement (National Instruments Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Rockets has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Rockets Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Rockets Board of Directors of the Company and, except for the (i) Company Rockets Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company Rockets are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company Rockets and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoMavericks, constitutes a the legal, valid and binding agreement of the CompanyRockets, enforceable against the Company Rockets in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting or relating to the enforcement of creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remediesrelief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought (clauses (i) and (ii) above, the “Enforceability Exceptions”).
(b) Other than in connection with Except as may be required under or in compliance with relation to (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (vvi) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended Federal Power Act (the “ECMRFPA”), and the Consent of the Federal Energy Regulatory Commission (the “FERC”) thereunder (the “FERC Approval”), (vivii) the approvals set forth on Section 3.3(b) Texas Utilities Code and the rules and regulations of the Company Disclosure SchedulePublic Utility Commission of Texas (the “PUCT”) and the approval of the PUCT thereunder, (viii) Section 70 of the New York Public Service Laws, and (vii) the rules and regulations of the New York Stock Exchange Public Service Commission (the “NYSENYPSC”) and the Consent of the NYPSC thereunder or a determination that no such approval is required (the consents “New York Authorization”), (ix) pre-approvals of license transfers by the Federal Communications Commission (the “FCC”) and (x) the approvals referenced set forth in Section 4.3(b)(x) of the Rockets Disclosure Schedule (the approvals or other actions contemplated by clauses (i) through (viix) above being collectively referred to herein as above, collectively, the “Company Rockets Approvals”), and, subject to the accuracy of the representations and warranties of Mavericks in Section 5.3(b), no authorization, consent consent, Order, license, permit, waiting period expiration or termination, waiver or approval (each a “Consent”) of, or registration, declaration, notice or filing (each, a “Filing”) with, any United States States, state of the United States, local or foreign governmental or regulatory agency, commission, court, body, entity entity, or authority authority, including the NERC, Exchanges and ISOs (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company Rockets of the transactions contemplated by this Agreement, except for (A) such authorizations, consents, approvals Consents or filings Filings that are not required to be obtained or made prior to the consummation of such transactions or that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Rockets Material Adverse Effect on or prevent Rockets from consummating the CompanyMerger or (B) any Consent or Filing set forth in Section 4.3(b)(B) of the Rockets Disclosure Schedule (the “Non-Rockets Approvals”).
(c) The execution and delivery by the Company Rockets of this Agreement does do not, and and, except as described in Section 4.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not not, (i) (A) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, acceleration or acceleration put right of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness Rockets Material Contract or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or (B) result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, deed of trust, security interests, equities or charges of any kind (each, a “Lien”), other than any Rockets Permitted Liens, in each case, upon any of the properties or assets of the Company Rockets or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of Rockets or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaw, other than, in the case of clauses clauses
(i) and (iii)) above, any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Rockets Material Adverse Effect on or prevent Rockets from consummating the CompanyMerger.
(d) The Rockets Board has, at a meeting duly called and held, duly adopted resolutions (i) determining that it is in the best interest of Rockets and the Rockets Stockholders to enter into this Agreement, (ii) declaring entry into this Agreement to be advisable, (iii) authorizing and approving Rockets’ execution, delivery and performance of this Agreement in accordance with its terms and Rockets’ consummation of the transactions contemplated hereby, including the Merger, (iv) directing that the adoption of this Agreement be submitted to a vote at a meeting of the Rockets Stockholders, and (v) recommending that the Rockets Stockholders adopt this Agreement (this clause (v), the “Rockets Recommendation”), which resolutions, as of immediately prior to the execution of this Agreement, have not been rescinded, modified or withdrawn.
Appears in 2 contracts
Samples: Merger Agreement (Vistra Energy Corp), Merger Agreement (Dynegy Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company WTW has all requisite corporate power and authority to enter into this Agreement and the Expenses Reimbursement Agreement and, subject (in the case of the Acquisition) to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)WTW Shareholder Approval, to perform its obligations hereunder and consummate the transactions contemplated herebyTransactions, including the MergerAcquisition. The execution execution, delivery and delivery performance by WTW of this Agreement the Expenses Reimbursement Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the WTW Board of Directors and in the case of the Company andAcquisition, except for the (i) Company Stockholder the WTW Shareholder Approval and (ii) the filing of the Certificate of Merger required documents and other actions in connection with the Secretary of State Scheme with, and to receipt of the State required approval of Delawarethe Scheme by, the High Court, and the delivery of the Court Order to the Registrar of Companies, no other corporate proceedings on the part of the Company WTW are necessary to authorize the consummation of the transactions contemplated herebyTransactions and pursuant to the Expenses Reimbursement Agreement. The On or prior to the date hereof, the WTW Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement Transactions are fair to and in the best interest interests of WTW and the WTW Shareholders and adopted a resolution to make, subject to Section 7.3 and to the obligations of the Company and its stockholders and (y) to recommend that such stockholders vote in favor WTW Board of Directors under the approval and adoption of this Agreement Takeover Rules, the WTW Board Recommendation and the Mergerrecommendation contemplated by Section 3.6(c). This Agreement has been duly and validly executed and delivered by the Company WTW and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoAon, constitutes a the valid and binding agreement of the CompanyWTW, enforceable against the Company WTW in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, fraudulent transfer, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting or relating to the enforcement of creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAAct, (ii) the Securities Takeover Panel Act of 1933, as amended (and the “Securities Act”)Takeover Rules, (iii) the Securities Act, (iv) the Exchange Act, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) Required Regulatory Clearances, (vii) any applicable requirements of the approvals NASDAQ, (vii) compliance with and filings under any Antitrust Laws of any non-U.S. jurisdictions and (viii) the matters set forth on in Section 3.3(b5.3(b) of the Company WTW Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company WTW of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company WTW of this Agreement does and the Expenses Reimbursement Agreement do not, and and, except as described in Section 5.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company WTW or any of the Company’s WTW Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company WTW or any of the Company’s WTW Subsidiaries, other than WTW Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation WTW Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any WTW Subsidiary or (iii) conflict with or violate any Laws applicable to the Company WTW or any of the Company’s WTW Subsidiaries or any of their respective properties or assets, other than, than in the case of clauses (i), (ii) and (iii), any such violation, breach, conflict, default, termination, modification, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Business Combination Agreement (Aon PLC), Business Combination Agreement (Willis Towers Watson PLC)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreementhereinafter defined), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company Company, acting upon the unanimous recommendation of the Special Committee, and, except for the (i) the Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareConnecticut, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, each of the Board of Directors of the Company has determined (xwith 2 directors abstaining) that and the transactions contemplated by this Agreement are fair to and in the best interest Special Committee of the Company and its stockholders and (y) Board of Directors has unanimously resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (including the Special Committee’s recommendation, the “Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability at Law) and any implied covenant of equitable remedies)good faith and fair dealing.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCACBCA, (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (viv) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”)) and any other antitrust, competition or similar laws of any foreign jurisdiction and (viv) the approvals set forth on Section 3.3(b3.4(b) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution execution, delivery and delivery performance by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, document of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) assuming that the consents and approvals referred to in Section 3.4(b) are duly obtained, conflict with or violate any applicable Laws or orders applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsits Subsidiaries, other than, in the case of clauses clause (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Leever Daniel H), Merger Agreement (Court Square Capital Partners II LP)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board, and the Company Board of Directors has (i) determined that it is in the best interests of the Company andand its stockholders, except for the (i) Company Stockholder Approval and declared it advisable, to enter into this Agreement and (ii) adopted this Agreement and approved the filing consummation of the Certificate of Merger with transactions contemplated hereby, including the Secretary of State of Merger, upon the State of Delawareterms and subject to the conditions set forth herein. Except for the Company Stockholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors As of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of date hereof, the Company and its stockholders and (y) Board has resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (the “Company Recommendation”) and directed that this Agreement be submitted to the holders of Company Common Stock for approval. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCANRS, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) and (v) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the consents “HSR Act”) and, subject to the accuracy of the representations and approvals referenced warranties of Parent and Merger Sub in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Section 4.21, no authorization, consent or approval of, or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or result in a default (with or without notice or lapse of time, or both) under, or require any consent or approval under, or give rise to a right of termination, cancellation cancellation, acceleration or acceleration amendment of any material obligation under, or give rise to the loss(except with respect to any Company Benefit Plans or other compensatory programs or arrangements) any vesting, alteration guaranteed payment or impairment loss of a material benefit under under, any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license (each, a “Contract”) binding upon or inuring to the benefit of the Company or any of the Company’s its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business or (C) which would not reasonably be expected to materially impair the continued use of a Company Owned Real Property or a Company Leased Real Property as currently operated, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such consent, approval, violation, conflict, default, termination, cancellation, acceleration, amendment, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Pulte Homes Inc/Mi/), Merger Agreement (Centex Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Hurricane has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of assuming the Company representations and warranties set forth in Section 4.24 are true and correct and the Hurricane Stockholder Approval (as defined in Section 3.20 of this Agreement)is obtained, to perform its obligations hereunder and to consummate the transactions contemplated herebyTransactions, including the Merger. The execution execution, delivery and delivery performance by Hurricane of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Hurricane Board of Directors of and, assuming the Company andrepresentations and warranties set forth in Section 4.24 are true and correct, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Hurricane or any Hurricane Subsidiary are necessary to authorize the consummation of the transactions contemplated herebyTransactions other than, with respect to the Merger, obtaining the Hurricane Stockholder Approval. The Prior to the execution of this Agreement, the Hurricane Board of Directors has unanimously adopted resolutions (A) declaring that this Agreement and consummation of the Company has determined (x) that Transactions, including the transactions contemplated by this Agreement Merger, are advisable and fair to to, and in the best interest interests of the Company Hurricane and its stockholders and stockholders, (yB) to recommend that such stockholders vote in favor of the approval and adoption of approving this Agreement and the Transactions, including the Merger, (C) authorizing the execution, delivery and performance of this Agreement, (D) directing that the Agreement of Merger be submitted for consideration at the Hurricane Special Meeting, (E) making the Hurricane Board Recommendation, and (F) approving the inclusion of the Hurricane Board Recommendation in the Proxy Statement/Prospectus, in each case subject to Section 5.3. This Agreement has been duly and validly executed and delivered by the Company Hurricane and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoCyclone and Merger Sub, constitutes a the valid and binding agreement of the CompanyHurricane, enforceable against the Company Hurricane in accordance with its terms terms, except that (except to the extent that enforceability 1) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ ' rights generally or by principles governing the availability and (2) equitable remedies of specific performance and injunctive and other forms of equitable remediesrelief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought (such exceptions in clauses (1) and (2), the "Enforceability Exceptions").
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”), (vi) the approvals other Antitrust Laws set forth on Section 3.3(b) of the Company Hurricane Disclosure ScheduleLetter, and (vi) any applicable requirements of the NYSE, (vii) CFIUS Approval and (viii) the rules and regulations consents set forth on Section 3.3(b) of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Hurricane Disclosure Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company Hurricane of the transactions contemplated by this AgreementTransactions, except for (A) such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Hurricane Material Adverse Effect on the Companyor (B) as may arise as a results of facts or circumstances relating to Cyclone or its affiliates or Laws or Contracts binding Cyclone or its affiliates.
(c) The execution and delivery by the Company Hurricane of this Agreement does do not, and, except as described in Section 3.3(b) and assuming that the representations and warranties set forth in Section 4.24 are true and correct, the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof of this Agreement will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company Hurricane or any of the Company’s Hurricane Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company Hurricane or any of the Company’s Hurricane Subsidiaries, other than Hurricane Permitted Liens, (ii) subject to obtaining the Hurricane Stockholder Approval, conflict with or result in any violation of any provision of the certificate of incorporation Hurricane Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Hurricane Subsidiary or (iii) conflict with or violate any Laws applicable to the Company Hurricane or any of the Company’s Hurricane Subsidiaries or any of their respective properties or assets, other than, than in the case of clauses (i), (ii) (with respect to Hurricane Subsidiaries that are not Hurricane Significant Subsidiaries) and (iii), any such violation, breach, conflict, default, termination, modification, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Hurricane Material Adverse Effect on the Company.Effect. Section 3.4
Appears in 2 contracts
Samples: Merger Agreement (Huntsman CORP), Merger Agreement (Huntsman CORP)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing assuming Parent is not an “interested stockholder” under Section 203 of the Certificate of Merger with the Secretary of State of the State of DelawareDGCL), no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the Second Amendment Date, the Board of Directors of the Company has determined unanimously (xamong the directors present and voting) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (the “Company Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of Parent and Merger Sub, constitutes the legal, valid and binding agreement of the other parties hereto, constitutes a valid Company and binding agreement of the Company, is enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as such enforcement may be limited by applicable (i) the effect of bankruptcy, insolvency, reorganization reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting the enforcement of or relating to creditors’ rights generally or by principles (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remediesremedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions Section 251 of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (vvi) any applicable non-United States competitionthe Federal Power Act, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of 16 U.S.C. §§ 791a-825r and/or the European Community, as amended regulations promulgated by Federal Energy Regulatory Commission (the “ECMRFERC”) thereunder (the “FPA”), and the approval of the FERC thereunder (the “FERC Approval”), (vivii) the approval of the Massachusetts Department of Public Utilities (the “MDPU Approval”), (viii) the approval of Missouri Public Service Commission (the “MPSC Approval”), (ix) the approval of the Federal Communications Commission (the “FCC”) for the transfer of control (or assignment, as applicable) of the Company’s business radio and other Title III wireless licenses, pursuant to Section 310 of the Communications Act of 1934, as amended, 47 U.S.C. § 310(d) (the “FCC Approval”); and (x) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority authority, independent system operator, regional transmission organization, other market administrator, or national, regional or state reliability organization (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if that are not required to be obtained or made, would not reasonably be expected made prior to have, individually or in the aggregate, a Material Adverse Effect on the Companyconsummation of such transactions.
(c) The Except as set forth in Section 3.3(c) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement does do not, and (assuming the Company Approvals are obtained and the Requisite Regulatory Approvals are obtained without any adverse condition or restraint) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or material suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets material to the conduct of their business or result in any material violation of, or material default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s its Subsidiaries or (iii) materially conflict with or materially violate any applicable Laws.
(d) This Agreement and the Merger have been approved by the Continuing Directors of their respective properties or assetsCrossCountry Energy, other thanLLC, a Delaware limited liability company (“CrossCountry”). For the purposes of this subsection (d), the term “Continuing Director” shall have the meaning ascribed thereto in that certain Capital Stock Agreement, dated June 30, 1986, among El Paso Energy Corporation (as successor interest to Sonat, Inc. by virtue of a merger), CrossCountry (as successor in interest to Enron Corp., which in turn was the case successor in interest to InterNorth, Inc. by virtue of clauses (ia name change, which in turn was the successor in interest to Houston Natural Gas corporation by virtue of a merger) and (iii)Citrus Corp. relating to the ownership by El Paso and CrossCountry of the Capital Stock of Citrus Corp. and its wholly owned subsidiaries, any as amended. CrossCountry is currently a “Principal” to such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyCapital Stock Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Energy Transfer Equity, L.P.), Agreement and Plan of Merger (Southern Union Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement andand to perform its obligations hereunder. The Company Board, subject to receipt by resolutions duly adopted by unanimous vote at a meeting of the Company Stockholder Approval (Board duly called and held and, as defined of the date hereof, not subsequently rescinded or modified in Section 3.20 any way, has, as of this Agreement)the date hereof, to consummate approved the transactions contemplated herebyexecution, including the Merger. The execution delivery and delivery performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by this Agreement, including the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no Offer. No other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Offeror, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to that the extent that enforceability enforcement hereof may be limited by applicable (i) bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or by principles governing the availability of equitable remediesat law).
(b) Other than in connection with or in compliance with The Company Board, at a meeting duly called and held, duly and unanimously adopted resolutions (i) approving this Agreement and the transactions contemplated hereby, including the Offer, and (ii) determining that the transactions contemplated hereby are in the best interests of the Company. Such resolutions are sufficient to render inapplicable to Offeror, this Agreement, the Offer and the other transactions contemplated hereby the provisions of articles 116 through 118 of the DGCL Amended and Restated Memorandum and Articles of Association of the Company. To the Knowledge of the Company, no “business combination,” “control share acquisition,” “fair price,” “moratorium” or other anti-takeover Laws apply or purport to apply to this Agreement or the transactions contemplated hereby.
(c) Assuming the accuracy of the representations and warranties of Parent and Offeror set forth in Section 3.02(b), the execution, delivery and performance by the Company of this Agreement and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 performance of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of Company’s obligations under this Agreement by the Company Disclosure Scheduledo not and will not require any consent, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)approval, no authorization, consent authorization or approval permit of, action by, filing with or filing withnotification to any federal, any United States state, local or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for compliance with the consummation by applicable requirements of the Exchange Act, including the filing of the Schedule 14D-9, (ii) compliance with the rules and regulations of the NYSE, (iii) compliance with any applicable state securities or blue sky laws, and (iv) the other consents and/or notices set forth in Section 2.04(c) of the Company Disclosure Letter (collectively, clauses (i) through (iv), the “Specified Approvals”), and other than any consent, approval, authorization, permit, action, filing or notification the failure of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals which to make or filings that, if not obtained or made, obtain would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Company Material Adverse Effect on or to prevent or materially delay or impair the Companyconsummation of the Offer or the other transactions contemplated by this Agreement.
(cd) The execution Assuming compliance with the matters referenced in Section 2.04(c) and the receipt of the Specified Approvals, the execution, delivery and performance by the Company of this Agreement does not, and the consummation by Offeror of the Offer and the other transactions contemplated hereby do not and compliance with the provisions hereof will not (i) contravene or conflict with the organizational or governing documents of the Company, including its memorandum and articles of association, or any of its Significant Subsidiaries; (ii) contravene or conflict with or constitute a violation of any provision of any Law binding upon or applicable to the Company or any of its Significant Subsidiaries or any of their respective properties or assets; or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrumentContract, permit, concession, franchise, or right or license binding upon the Company or any of the Company’s its Significant Subsidiaries or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s its Significant Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (iii) and (iii), any such violation, conflict, default, consent, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Company Material Adverse Effect on or to prevent or materially delay or impair the Companyconsummation of the Offer or the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Investment and Tender Offer Agreement (Global Aviation Leasing Co., Ltd.), Investment and Tender Offer Agreement (Avolon Holdings LTD)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board, and the Company Board of Directors has (i) determined that it is in the best interests of the Company andand its stockholders, except for the (i) Company Stockholder Approval and declared it advisable, to enter into this Agreement and (ii) adopted this Agreement and approved the filing consummation of the Certificate of Merger with transactions contemplated hereby, including the Secretary of State of Merger, upon the State of Delawareterms and subject to the conditions set forth herein. Except for the Company Stockholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors As of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of date hereof, the Company and its stockholders and (y) Board has resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (the “Company Recommendation”) and directed that this Agreement be submitted to the holders of Company Common Stock for approval. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAMerger Statutes, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended and (iii) the Securities Act of 1933 (the “Securities Act”), (iii) and, subject to the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 accuracy of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) representations and warranties of the Company Disclosure Schedule, Parent and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced Merger Sub in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Article IV, no authorization, consent or approval of, or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or result in a default (with or without notice or lapse of time, or both) under, or require any consent or approval under, or give rise to a right of termination, cancellation cancellation, acceleration or acceleration amendment of any material obligation under, or give rise to the loss(except with respect to any Company Benefit Plans or other compensatory programs or arrangements) any vesting, alteration guaranteed payment or impairment loss of a material benefit under under, any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license (each, a “Contract”) binding upon or inuring to the benefit of the Company or any of the Company’s its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business or (C) which would not reasonably be expected to materially impair the continued use of a Company Owned Real Property or a Company Leased Real Property as currently operated, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such consent, approval, violation, conflict, default, termination, cancellation, acceleration, amendment, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Atlas Capital Holdings, Inc.), Merger Agreement (Medianet Group Technologies Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into execute and deliver this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Mergerby this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by this Agreement have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) the Company Stockholder Approval Approval, and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or the consummation of the transactions contemplated herebyby this Agreement. The Board of Directors of has determined and resolved (i) that the Merger is fair to, and in the best interests of, the Company has determined and its stockholders, (xii) to propose this Agreement for adoption by the Company’s stockholders and to declare the advisability of this Agreement and (iii) subject to the other provisions of this agreement, to recommend that the Company’s stockholders approve this Agreement and the transactions contemplated by this Agreement are fair to (collectively, the “Recommendation”), all of which determinations and resolutions have not been rescinded, modified or withdrawn in the best interest any way as of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption date of this Agreement and the MergerAgreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except (except i) as rights to indemnify hereunder may be limited by federal or state securities laws or the extent that public policies embodied therein, (ii) as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other Laws similar laws affecting the enforcement of creditors’ rights generally or by principles governing generally, and (iii) as the availability remedy of specific performance and other forms of injunctive relief may be subject to equitable remedies)defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions DGCL, including, but not limited to, the filing of the DGCL and the DLLCA, Certificate of Merger (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (viv) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 the Securities Act of the European Community, as amended 1933 (the “ECMRSecurities Act”), (v) applicable state securities or “blue sky” Laws, (vi) the rules and regulations of NASDAQ Global Market (“NASDAQ”), and (vii) the approvals set forth on Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.9, no authorization, consent consent, permit, action or approval of, or filing with, or notification to, any United States or foreign governmental non-United States (including European Union) national, state, provincial, municipal or local government, governmental, administrative or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for any such authorizationsauthorization, consentsconsent, approvals permit, action, approval, filing or filings that, if not obtained notification the failure of which to make or made, obtain would not reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby by this Agreement and compliance with the provisions hereof of this Agreement will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, amendment, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right permit or license agreement (collectively, “Contracts”) binding upon the Company or any of the Company’s Subsidiaries its Subsidiaries, or to which any of them is a party or any of their respective properties are bound, or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company made available to Parent (or notes thereto or securing liabilities reflected on such balance sheet) or (D) securing indebtedness not in excess of $100,000 (each of the foregoing, a “Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of the Company’s its Subsidiaries, or (iii) assuming receipt of the Company Stockholder Approval, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses clause (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect.
(d) Section 3.3(d) of the CompanyCompany Disclosure Schedule sets forth a list of any consent, approval, authorization or permit of, action by, registration, declaration or filing with or notification to any person under any (i) Company Material Contract or (ii) material lease, material sublease, material assignment of lease or material occupancy agreement (each a “Material Lease”) to which the Company or any of its Subsidiaries is a party which is required in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, other than those the failure of which to obtain would not have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Triquint Semiconductor Inc), Agreement and Plan of Merger (Wj Communications Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject (in the case of the Merger) to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to perform its obligations hereunder and to consummate the transactions contemplated hereby, including the MergerTransactions. The execution execution, delivery and delivery performance by the Company of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors and (in the case of the Merger, except for (i) receipt of the Company and, except for the (i) Company Stockholder Shareholder Approval and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of Delaware, WDFI) no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated herebyTransactions. The On or prior to the date hereof, the Company Board of Directors of the Company has determined (xA) resolved that the transactions contemplated by this Agreement and the Transactions, including the Merger, are advisable and fair to to, and in the best interest of interests of, the Company and its stockholders the Company shareholders, (B) adopted resolutions adopting and (y) to recommend that such stockholders vote in favor of the approval and adoption of approving this Agreement and the consummation of the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the WBCL and (C) adopted a resolution to make, subject to Section 5.3, the Company Board Recommendation. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability 1) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, fraudulent transfer, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting or relating to the enforcement of creditors’ rights generally or by principles governing the availability and (2) equitable remedies of specific performance and injunctive and other forms of equitable remediesrelief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought (clauses (1) and (2), collectively, the “Enforceability Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAWBCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”)other Antitrust Laws, (vi) the approvals requirement to file the Articles of Merger with the WDFI, (vii) any applicable requirements of the NYSE, (viii) Irish Prospectus Law and (ix) the matters set forth on in Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyRelevant Authority is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not not, (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise right or license binding upon the Company or Company, any of the Company Subsidiaries or, to the knowledge of the Company’s Subsidiaries , any Company Joint Venture or result in the creation of any Lien Liens or any other material obligations, losses or grants of rights upon any of the properties properties, rights or assets of the Company, any Company or any Subsidiary or, to the knowledge of the Company’s Subsidiaries, any Company Joint Venture, other than Company Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate Company Governing Documents or any of incorporation or by-laws the organizational documents of any Company Subsidiary or, to the knowledge of the Company, as amended (the “any Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Joint Venture or (iii) conflict with or violate any Laws applicable to the Company or Company, any of the Company Subsidiaries or, to the knowledge of the Company’s Subsidiaries , any Company Joint Venture or any of their respective properties or assets, other than, in the case of clauses (i), (ii) (with respect to the Company Joint Ventures and the Company Subsidiaries that are not Significant Subsidiaries only) and (iii), any such violation, breach, conflict, default, termination, modification, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Johnson Controls Inc), Merger Agreement (TYCO INTERNATIONAL PLC)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreementif required by applicable Law), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby hereby, including the Offer and the Merger, have been duly and validly authorized by the Board of Directors of the Company Company, and, except for the (i) the Company Stockholder Approval if required by applicable Law and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, the Board of Directors of the Company has determined (x) resolved to recommend that the Company’s stockholders accept the Offer, tender their Shares pursuant to the Offer and, if required by applicable Law, adopt this Agreement and approve the Merger and the transactions contemplated by this Agreement are fair to and in hereby (the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger“Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability at Law) and any implied covenant of equitable remedies)good faith and fair dealing.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iviii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (iv) any foreign antitrust, competition or similar Laws, (v) any applicable non-United States competition, antitrust the filing with the Securities and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended Exchange Commission (the “ECMRSEC”)) of (A) the Schedule 14D-9 and (B) if required by applicable Law, a proxy statement in definitive form relating to the Company Meeting (the “Proxy Statement”) and (vi) the approvals set forth on Section 3.3(b4.4(b) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent consent, Order, permit or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity entity, non-governmental self-regulatory agency, or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyhereby.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby hereby, including the Offer and the Merger, and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Company Subsidiary Organizational Documents or (iii) assuming that the consents and approvals referred to in Section 4.4(b) are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i), (ii) (to the extent relating to Subsidiaries) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, the Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) unanimously resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (the “Company Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (vvi) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European CommunityFederal Power Act, as amended (the “ECMRFPA”), and the approval of the Federal Energy Regulatory Commission (the “FERC”) thereunder (the “FERC Approval”), (vivii) the New York Public Service Law, as amended, (the “PSL”) and the approval, or the determination that no approval is required, of the New York Public Service Commission (the “NYPSC”) thereunder, (viii) the rules and regulations of the California Public Utilities Commission (the “CPUC”), (ix) pre-approvals of license transfers by the Federal Communications Commission (the “FCC”) and (x) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet delinquent, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet, (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company, (E) permitted under the agreements set forth on Section 3.3(c)(i)(E) of the Company Disclosure Schedules, or (F) which does not and would not reasonably be expected to materially impair the continued use of a Company Owned Real Property or a Company Leased Real Property as currently operated (each of the foregoing, a “Company Permitted Lien”), in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Rri Energy Inc), Merger Agreement (Mirant Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing assuming Parent is not an “interested stockholder” under Section 203 of the Certificate of Merger with the Secretary of State of the State of DelawareDGCL), no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, the Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) unanimously resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (the “Company Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of Parent and Merger Sub, constitutes the legal, valid and binding agreement of the other parties hereto, constitutes a valid Company and binding agreement of the Company, is enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as such enforcement may be limited by applicable (i) the effect of bankruptcy, insolvency, reorganization reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting the enforcement of or relating to creditors’ rights generally or by principles (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remediesremedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions Section 251 of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (vvi) any applicable non-United States competitionthe Federal Power Act, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of 16 U.S.C. §§ 791a-825r and/or the European Community, as amended regulations promulgated by Federal Energy Regulatory Commission (the “ECMRFERC”) thereunder (the “FPA”), and the approval of the FERC thereunder (the “FERC Approval”), (vivii) the approval of the Massachusetts Department of Public Utilities (the “MDPU Approval”), (viii) the approval of Missouri Public Service Commission (the “MPSC Approval”), (ix) the approval of the Federal Communications Commission (the “FCC”) for the transfer of control (or assignment, as applicable) of the Company’s business radio and other Title III wireless licenses, pursuant to Section 310 of the Communications Act of 1934, as amended, 47 U.S.C. § 310(d) (the “FCC Approval”); and (x) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority authority, independent system operator, regional transmission organization, other market administrator, or national, regional or state reliability organization (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if that are not required to be obtained or made, would not reasonably be expected made prior to have, individually or in the aggregate, a Material Adverse Effect on the Companyconsummation of such transactions.
(c) The Except as set forth in Section 3.3(c) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement does do not, and (assuming the Company Approvals are obtained) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or material suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets material to the conduct of their business or result in any material violation of, or material default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s its Subsidiaries or (iii) materially conflict with or materially violate any applicable Laws.
(d) This Agreement and the Merger have been approved by the Continuing Directors of their respective properties or assetsCrossCountry Energy, other thanLLC, a Delaware limited liability company (“CrossCountry”). For the purposes of this subsection (d), the term “Continuing Director” shall have the meaning ascribed thereto in that certain Capital Stock Agreement, dated June 30, 1986, among El Paso Energy Corporation (as successor interest to Sonat, Inc. by virtue of a merger), CrossCountry (as successor in interest to Enron Corp., which in turn was the case successor in interest to InterNorth, Inc. by virtue of clauses (ia name change, which in turn was the successor in interest to Houston Natural Gas corporation by virtue of a merger) and (iii)Citrus Corp. relating to the ownership by El Paso and CrossCountry of the Capital Stock of Citrus and its wholly owned subsidiaries, any as amended. CrossCountry is currently a “Principal” to such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyCapital Stock Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Energy Transfer Equity, L.P.), Merger Agreement (Southern Union Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement Agreement, and, subject to receipt of approval of this Agreement by holders of at least a majority of the outstanding shares of Company Common Stock (the “Company Stockholder Approval Approval”), and the occurrence of the shareholder advisory vote contemplated by Rule 14a-21(c) under the Exchange Act, regardless of the outcome of such vote (as defined in Section 3.20 of this Agreementthe “Company Stockholder Advisory Vote”), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby have been or shall be duly and validly authorized by the Company Board of Directors of the Company and, except for the (i) Company Stockholder Approval (and (iithe occurrence of the Company Stockholder Advisory Vote) and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company or vote of the Company’s securityholders are necessary to authorize the consummation of the transactions contemplated hereby. The Company Board of Directors of the Company has determined unanimously (xi) resolved to recommend that the transactions contemplated by Company’s stockholders adopt this Agreement (the “Company Recommendation”), (ii) determined that this Agreement and the Merger are fair to advisable to, and in the best interest of interests of, the Company and its stockholders stockholders, (iii) approved the execution, delivery and (y) to recommend that such stockholders vote in favor of the approval and adoption performance of this Agreement and the Merger, and (iv) resolved that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretocounterparties thereto, constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (terms, except as such enforcement may be subject to the extent that enforceability may be limited limitation of such enforcement by applicable (A) the effect of bankruptcy, insolvency, reorganization reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting the enforcement of or relating to creditors’ rights generally or by principles (B) the rules governing the availability of specific performance, injunctive relief or other equitable remediesremedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCASecretary of State of the State of Delaware, (ii) the Exchange Act, (iii) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976applicable state securities, as amended (the takeover and “HSR Act”)blue sky” Laws, (v) any applicable non-United States competition, antitrust the rules and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 regulations of the European Community, as amended (the “ECMR”)Nasdaq, (vi) the approvals HSR Act and each of the other Antitrust Laws set forth on in Section 3.3(b3.3(b)(vi) of the Company Disclosure ScheduleLetter, and (vii) the rules and regulations of the New York Stock Exchange Company Stockholder Approval (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as collectively, the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.3(c), no other authorization, consent consent, order, license, Permit or approval (“Consent”) of, or registration, declaration, notice or filing (“Filing”) with, any United States, state of the United States or local, foreign or multi-national governmental or regulatory agency, commission, court, body, entity court or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals Consents or filings Filings as are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement and which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and (assuming the Company Approvals are obtained and the Company Credit Agreement is terminated and repaid in full prior to the Effective Time) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, leaseCompany Real Property Lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (excluding, in each case, transfer restrictions of general applicability pursuant to any securities Laws) (each, a “Lien”) other than Permitted Liens (provided that no Lien shall be deemed created by this Agreement), in each case, upon any of the properties or assets of the Company or any of its Subsidiaries, except for such losses, suspensions, limitations, impairments, conflicts, violations, defaults, terminations, cancellations, accelerations or Liens which have not had and would not reasonably be expected to have, individually or in the Company’s Subsidiariesaggregate, a Company Material Adverse Effect, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, as amendedamended or restated, of the Company or any of its Subsidiaries, (iii) subject to obtaining the Company’s SubsidiariesConsents set forth in Section 3.3(c)(iii) of the Company Disclosure Letter, violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the loss of any material benefit or the imposition of any material liability under, any Company Material Contract, or (iiiiv) conflict with or violate any Laws applicable to the Company Laws, except for such conflict or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that violation as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Ii-Vi Inc), Merger Agreement (Coherent Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to consummate the transactions contemplated hereby, including the MergerTransactions. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareShareholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the Merger or the consummation of the transactions contemplated herebyTransactions. The Board of Directors of the Company at a meeting duly called and held at which all directors of the Company were present has (i) determined (x) that the transactions contemplated by this Agreement are Merger is fair to to, and in the best interest of interests of, the Company and its stockholders and shareholders, (yii) to recommend that such stockholders vote in favor of the approval and adoption of approved this Agreement and the MergerTransactions, (iii) unanimously resolved, subject to Section 5.3, to recommend that the Company’s shareholders approve this Agreement and the Transactions (the “Company Recommendation”) and (iv) directed that such matter be submitted for consideration of the shareholders of the Company at the Company Shareholders’ Meeting, and such resolutions have not been subsequently rescinded, modified or withdrawn in any way. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAOGCL, (ii) the Securities Exchange Act of 19331934, as amended (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (viv) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European CommunityFederal Power Act, as amended (the “ECMRFPA”), and the approval of the Federal Energy Regulatory Commission (the “FERC”) thereunder (the “FERC Approval”), (v) the Public Utilities Commission of Ohio (the “PUCO”), (vi) pre-approvals of license transfers by the approvals Federal Communications Commission (the “FCC”) or (vii) as set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.2(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, or action by, the United States, any state of the United States or any foreign governmental or regulatory agency, commission, court, panel, body, entity or authority (each, a “Governmental Entity”) is necessary for or required to be obtained or made under applicable Law in connection with the consummation execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder or the transactions contemplated consummation of the Transactions by this Agreementthe Company, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The Except as set forth in Section 3.3(c) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement does do not, and and, provided the Company Approvals are obtained, the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) conflict with, result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, deed of trust, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due or delinquent or being contested in good faith and for which adequate accruals or reserves have been established in accordance with GAAP as shown on the Company’s most recent audited consolidated balance sheet, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet, (D) which does not and would not reasonably be expected to materially impair the continued use and operation of the assets to which they relate as operated as of the date hereof or any property at which the material operations of the Company or any of its Subsidiaries are conducted as of the date hereof (each of the foregoing (A) through (D), a “Company Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws Documents or other equivalent organizational documents, in each case, as amended, document of any Subsidiaries of the Company’s Subsidiaries, Company or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (DPL Inc), Merger Agreement (DPL Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated herebyTransactions, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Board of Directors of the Company Board, acting unanimously, and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company or the Company Subsidiary are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of Transactions other than, with respect to the Merger, obtaining the Company has Stockholder Approval. Prior to the execution of this Agreement, at a meeting duly called and held, the Company Board unanimously (i) determined (x) that the transactions contemplated by this Agreement and the Transactions, including the Merger, are advisable, and fair to and in the best interest of interests of, the Company and its stockholders stockholders, (ii) approved and declared advisable this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the DGCL and (yiii) resolved to recommend that such the Company’s stockholders vote in favor of approve the approval and adoption of this Agreement (such recommendation, the “Company Board Recommendation”) and to include the MergerCompany Board Recommendation in the Proxy Statement, in each case subject to Section 5.2. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium or other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally or by and equitable principles governing of general applicability (the availability of equitable remedies“Bankruptcy and Equity Exception”).
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCASecretary of State of the State of Delaware, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iii) the HSR Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”)EA 2002, (v) any applicable non-United States competition, antitrust Section 721 and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) any applicable requirements of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)NASDAQ, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on or materially impair the Companyability of the Parties to consummate the Transactions.
(c) The Assuming the accuracy of the representation set forth in Section 4.9, the execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof of this Agreement will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company or any of the Company’s Subsidiaries Company Subsidiary or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s SubsidiariesCompany Subsidiary, other than Company Permitted Liens, (ii) subject to obtaining the Company Stockholder Approval, conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Company Subsidiary or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries Company Subsidiary or any of their respective properties or assets, other thanexcept as would not, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on or materially impair the Companyability of the Parties to consummate the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Indivior PLC), Merger Agreement (Indivior PLC)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Danube has all requisite corporate power and authority to enter into this Agreement and, subject and to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to perform its obligations hereunder and consummate the transactions contemplated herebyTransactions, including the MergerAcquisition. The execution execution, delivery and delivery performance by Danube of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Danube Board of Directors of the Company andDirectors, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Danube are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the MergerTransactions. This Agreement has been duly and validly executed and delivered by the Company Danube and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoAmazon and Sellers, constitutes a the valid and binding agreement of the CompanyDanube, enforceable against the Company Danube in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, fraudulent transfer, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting or relating to the enforcement of creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCASecurities Act, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iii) the HSR Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”)Required Regulatory Clearances, (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European CommunityNYSE, as amended (the “ECMR”)Irish Stock Exchange plc or the Global Exchange Market, (vi) compliance with and filings under any Antitrust Laws of any non-U.S. jurisdictions, (vii) filings under the approvals DPA and any Foreign Investment Laws, (viii) filings under the Canada Transportation Act, and (ix) the matters set forth on in Section 3.3(b4.3(b) of the Company Danube Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company Danube of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Danube Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company Danube of this Agreement does not, and and, except as described in Section 4.3(c) of the Danube Disclosure Letter, the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit benefit, under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company Danube or any of the Company’s Danube Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company Danube or any of the Company’s Danube Subsidiaries, other than Danube Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Danube Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Danube Subsidiary or (iii) conflict with or violate any Laws applicable to the Company Danube or any of the Company’s Danube Subsidiaries or any of their respective properties or assets, other than, than in the case of clauses (i), (ii) and (iii), any such violation, breach, conflict, default, termination, modification, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Danube Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Business Combination Agreement (Bungeltd), Business Combination Agreement (Bungeltd)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of Merger Approval, to perform its obligations under this Agreement), Agreement and to consummate the transactions contemplated hereby, including the Merger. The execution execution, delivery and delivery performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board board of Directors directors of the Company and, except for the (i) Company Stockholder Merger Approval and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareIndiana, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board Special Committee, at a meeting duly called and held, has by unanimous vote of Directors of the Company has determined (x) that all its members approved and declared this Agreement and the transactions contemplated by this Agreement hereby, including the Merger, advisable and determined that such transactions are fair to and in the best interest interests of the Company and its stockholders shareholders (other than the holders of shares of Company Common Stock that are to be cancelled as described in Section 2.01(a)). Subject to Section 5.02(c) and Section 5.03, the board of directors of the Company, based on the unanimous recommendation of the Special Committee, has unanimously, by resolutions duly adopted at a meeting duly called and held, (i) duly and validly approved and declared advisable this Agreement and the transactions contemplated hereby, (ii) determined that the terms of this Agreement are in the best interests of, the Company and its shareholders, and (yiii) to recommend recommended in accordance with the IBCL that such stockholders the Company’s shareholders vote in favor of the approval and adoption of this Agreement and (the Merger“Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of Parent, Merger Sub and the other parties heretoContributing Shareholders, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (terms, except to the extent that as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)Enforceability Exemptions.
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the other documents contemplated hereby, and the consummation by the Company of the transactions contemplated hereby, will not require any consent, approval, authorization or permit of, filing with or in compliance with notification to, any Governmental Entity, except for:
(i) applicable requirements, if any, of (A) the provisions Securities Exchange Act of 1934, as amended (the DGCL and “Exchange Act”), including the DLLCA, filing with the SEC of a proxy statement (iias amended or supplemented from time to time); (B) the Securities Act of 1933, as amended (the “Securities Act”), (C) state securities or “blue sky” Laws and (D) state Takeover Laws;
(ii) obtaining the Merger Approval;
(iii) filing of the Exchange Act, Articles of Merger with the Secretary of State of the State of Indiana as required by the IBCL; and
(iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals approvals, orders, filings or filings notices that, if not obtained or made, would not reasonably be expected to have, (A) prevent or delay the Company from performing its obligations under this Agreement in any material respect or (B) individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
(c) The execution execution, delivery and delivery performance by the Company of this Agreement does do not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not (i) result in any violation of, or default (with or without notice or lapse of time):
(i) contravene, conflict with or both) under, result in a violation or give rise to a right of termination, cancellation or acceleration breach of any obligation of the terms or to requirements of any provision of the loss, alteration or impairment Governing Documents of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of its Subsidiaries;
(ii) assuming receipt of the consents, approvals and authorizations specified in Section 3.03(b), contravene, conflict with or result in a violation or breach of (x) any of the terms or requirements, or give any Governmental Entity or other Person the right to exercise any remedy or obtain any relief under, any Law or Order to which the Company or any of its Subsidiaries may be subject, or (y) any of the terms or requirements of, or give any Governmental Entity the right to revoke, withdraw, suspend, cancel, terminate or modify, any material Governmental Authorization;
(iii) assuming receipt of the consent of the Company’s Subsidiaries primary lender result in a breach of, or violate, or be in conflict with, or constitute a default under, or permit the termination of, or require any consent or authorization under, or cause or permit acceleration of the maturity or performance of or payment under any Company Material Contract; or
(iv) result in the imposition or creation of any material Lien upon or with respect to any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and Sections 3.03(c)(ii), (iii), or (iv), any such violationconflicts, conflictbreaches, defaultviolations, rightdefaults, loss rights, losses or Lien Liens that has not had, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Us 1 Industries Inc), Merger Agreement (Us 1 Industries Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated herebyTransactions, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Board board of Directors directors of the Company (the “Company Board”) and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company or any Company Subsidiary are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of Transactions other than, with respect to the Merger, obtaining the Company has Stockholder Approval. Prior to the execution of this Agreement, at a meeting duly called and held, the Company Board unanimously (i) determined (x) that the transactions contemplated by this Agreement and the Transactions, including the Merger, are advisable, fair to and in the best interest interests of the Company and its stockholders stockholders, (ii) approved and declared advisable this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the DGCL and (yiii) resolved to recommend that such the Company’s stockholders vote in favor of approve the approval and adoption of this Agreement (such recommendation, the “Company Board Recommendation”) and to include the MergerCompany Board Recommendation in the Proxy Statement/Prospectus, in each case subject to Section 5.3. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium or other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally or by and equitable principles governing of general applicability (the availability of equitable remedies“Bankruptcy and Equity Exception”).
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCASecretary of State of the State of Delaware, (ii) the Securities Act of 1933and any applicable state securities, as amended (the takeover and “Securities Act”)blue sky” Laws, (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)NASDAQ, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof of this Agreement will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company or any of the Company’s Company Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s Company Subsidiaries, other than Company Permitted Liens, (ii) subject to obtaining the Company Stockholder Approval, conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Company Subsidiary or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Company Subsidiaries or any of their respective properties or assets, other thanexcept as would not, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Samples: Merger Agreement (Kythera Biopharmaceuticals Inc), Merger Agreement (Allergan PLC)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into execute and deliver this Agreement and each other document to be entered into by Company in connection with the Transactions (together with this Agreement, the "Transaction Documents") and, subject to receipt the adoption of this Agreement and the approval of the Merger by the holders of a majority of the shares of Company Common Stock entitled to vote thereon (the "Company Stockholder Approval (as defined in Section 3.20 of this AgreementApproval"), to consummate the transactions contemplated hereby, including the MergerTransactions. The execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company or vote of any stockholders are necessary to authorize the consummation of the transactions contemplated herebyTransactions. The Company Board of Directors of the Company has determined have (xi) resolved to recommend that the transactions contemplated by Company's stockholders adopt this Agreement (the "Recommendation"), (ii) determined that this Agreement and the Merger are advisable and fair to and in the best interest interests of the Company and its stockholders and Company's stockholders, (yiii) to recommend that such stockholders vote in favor of the approval and adoption of approved this Agreement and the Merger, and (iv) directed that the adoption of this Agreement be submitted to Company's stockholders for approval. This Agreement Each of the Transaction Documents has been duly and validly executed and delivered by the Company and, assuming this Agreement each such Transaction Document constitutes a the legal, valid and binding agreement of the other parties heretocounterparty thereto, each of the Transaction Documents constitutes a the legal, valid and binding agreement of the Company, Company and is enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as such enforcement may be limited by applicable subject to (A) the effect of bankruptcy, insolvency, reorganization reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting the enforcement of or relating to creditors’ rights generally or by principles (B) the rules governing the availability of specific performance, injunctive relief or other equitable remediesremedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the "Remedies Exceptions").
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and articles of merger with the DLLCASecretary of State of the State of Nevada, (ii) the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"), (iii) the U.S. Securities Act of 1933, as amended amended, and the rules and regulations promulgated thereunder (the “" Securities Act”"), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976applicable state securities, as amended takeover and "blue sky" Laws, and (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viiv) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company "Approvals”"), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “"Governmental Entity”") or any third party is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, orders, licenses, permits, approvals or filings that, if that are not required to be obtained or made, would not reasonably be expected made prior to have, individually or in consummation of the aggregate, a Material Adverse Effect on the CompanyTransactions.
(c) The execution and delivery by the Company of this Agreement does not, and (assuming the Approvals are obtained) the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractcontract (including any Oil and Gas Lease or Oil and Gas Contract), instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a "Lien") other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate articles of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyLaws.
Appears in 2 contracts
Samples: Merger Agreement (Stratex Oil & Gas Holdings, Inc.), Merger Agreement (RICHFIELD OIL & GAS Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Buyer (and any of its permitted assignees as set forth in Section 11.8) has all requisite corporate power and authority to enter into this Agreement and, subject and the Ancillary Agreements to receipt be executed and delivered by Buyer (and any of the Company Stockholder Approval (its permitted assignees as defined set forth in Section 3.20 of this Agreement), 11.8) and to consummate the transactions contemplated hereby, including the Mergerhereby and thereby. The execution and delivery of this Agreement and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted assignees as set forth in Section 11.8) and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of the Company andBuyer (and any of its permitted assignees as set forth in Section 11.8), except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to hereby and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Mergerthereby. This Agreement has been been, and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted assignees as set forth in Section 11.8) will, as of the Closing, have been, duly and validly executed and delivered by the Company Buyer and, assuming this Agreement constitutes a constitutes, and as of the Closing the Ancillary Agreements to be executed and delivered by the applicable Seller Entities will constitute the valid and binding agreement of such Seller Entities, this Agreement constitutes, and as of the other parties heretoClosing, constitutes a the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted assignees as set forth in Section 11.8) will constitute, the valid and binding agreement of the CompanyBuyer (and any of its permitted assignees as set forth in Section 11.8), enforceable against the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCANorth Dakota Business Corporation Act, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, Act and (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976and other federal and state competition Laws (collectively, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Buyer Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) of the transactions contemplated by this AgreementAgreement and the Ancillary Agreements, except for such authorizations, consents, approvals or filings filings, that, if not obtained or made, would not reasonably be expected to have, individually materially impair or in delay the aggregate, a Material Adverse Effect on consummation of the Companytransactions contemplated hereby.
(c) The execution and delivery by the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) of this Agreement and the Ancillary Agreements to be executed and delivered by Buyer (and any of its permitted assignees as set forth in Section 11.8) does not, and and, except as described in Section 5.2(b), the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) or any of the Company’s its Subsidiaries or result in the creation of any Lien, other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves has been established, or (B) which was incurred in the ordinary course of business and is immaterial in amount, upon any of the properties or assets of the Company Buyer (and any of its permitted assignees as set forth in Section 11.8) or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amended, of Buyer (and any of the Company’s Subsidiaries, its permitted assignees as set forth in Section 11.8) or any of its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, righttermination, cancellation, acceleration, loss or Lien that has not had, and would not reasonably be expected to have, individually materially impair or in delay the aggregate, a Material Adverse Effect on consummation of the Companytransactions contemplated hereby.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (McClatchy Co), Stock and Asset Purchase Agreement (McClatchy Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the Merger and the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company Board, and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the Merger and the transactions contemplated hereby. The Board of Directors of determined that the Company has determined (x) that Merger and the transactions contemplated by this Agreement hereby are fair to and in the best interest interests of the Company Company’s stockholders, declared the Merger to be advisable, and its stockholders approved and adopted this Agreement. As of the date hereof, the Board has unanimously (yas to those Board members voting) resolved to recommend that such the Company’s stockholders entitled to vote in favor of the approval and adoption of thereon adopt this Agreement and approve the MergerMerger and the transactions contemplated hereby, subject to the terms and conditions set forth herein (the “Recommendation”). This Agreement has been duly and validly executed and delivered by the Company andCompany, and assuming this Agreement constitutes a the valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other Laws affecting the enforcement of creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or by principles governing the availability of equitable remediesat law).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 1933, as amended 1934 and the rules promulgated thereunder (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), ) and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viiv) the approvals set forth on Section 3.3(b3.4(b) of the Company Disclosure ScheduleExceptions Letter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States States, foreign, federal, state, provincial or foreign local governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) or other person is necessary necessary, under applicable Law or otherwise, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for non-material municipal or waste permits required to be obtained in connection with a change in control transaction, and such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on or impair in any material respect the Companyability of the Company to perform its obligations hereunder.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the lossloss of any benefit under, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of its Subsidiaries, except for non-material municipal or other waste permits required to be obtained in connection with the Company’s Subsidiariestransactions contemplated hereby and that the parties will cooperate to obtain prior to the Effective Time, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Company Charter Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Subsidiary Documents or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss loss, Lien or Lien failure to obtain consent that has would not had, and have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Wca Waste Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into execute and deliver this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) the Company Stockholder Shareholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareOhio, no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or the consummation of the transactions contemplated hereby. The Board of Directors Directors, at a meeting duly called and held, has unanimously (w) approved this Agreement and the Merger and the other transactions contemplated hereby in accordance with the OGCL, including but not limited to specifically for purposes of the Company has determined Chapter 1704 thereof; (x) determined that the transactions contemplated by this Agreement are Merger is fair to to, advisable and in the best interest interests of the Company and its stockholders and shareholders; (y) agreed to recommend that such stockholders vote in favor of the approval and adoption of propose this Agreement and the Mergertransactions contemplated hereby for approval and adoption by the Company’s shareholders and (z) agreed to recommend that the Company’s shareholders approve and adopt this Agreement and the transactions contemplated hereby, and such resolutions pursuant to which such actions were taken have not been rescinded or modified (the resolutions described in clauses (w), (x), (y) and (z) are hereinafter referred to as the “Company Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms subject to (except to the extent that enforceability may be limited by i) applicable bankruptcy, insolvency, reorganization reorganization, fraudulent transfer, moratorium or other similar Laws from time to time in effect affecting the enforcement of creditors’ rights generally generally, and (ii) general principles of equity, whether such principles are considered in a proceeding at Law or by principles governing the availability of equitable remedies)in equity.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAOGCL, (ii) the Securities Exchange Act of 19331934, as amended amended, and the rules and regulations promulgated thereunder (the “Securities Exchange Act”), and (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the other governmental approvals set forth on Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.7, no material authorization, consent consent, license, order, permit, action or approval of, or filing with, or notification to, any United States federal, state or local or foreign governmental or regulatory agency, commission, courtcourt of competent jurisdiction, body, entity or authority or arbitral tribunal (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the execution, delivery and performance of the Agreement or the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 3.3(b) or in Section 3.3(c) of the Company Disclosure Schedule, the consummation of the transactions contemplated hereby and compliance with the provisions hereof of this Agreement by the Company will not (i) materially conflict with, result in any material violation of, of or material default (with or without notice or lapse of time, or both) under, or materially impair the Company’s or any of its Subsidiaries’ rights or materially alter the rights or obligations of any third party under, or give rise to a right of termination, amendment, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under under, or to increased, additional, accelerated or guaranteed rights or entitlements of any material loanperson under, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any a Lien upon (other than a Permitted Lien) on any of the properties or assets of the Company or any of the Company’s Subsidiariesits Subsidiaries under, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiariesterms, conditions or provisions of any (iiii) conflict with note, bond, mortgage, indenture, lease, license, contract, agreement, arrangement or violate any Laws applicable understanding or other instrument or obligation to which the Company or any of the Company’s its Subsidiaries is a party or by which any of them or any of their respective properties or assetsassets may be bound (the “Company Agreements”), other than(ii) the Company Articles, in the case Company Regulations or the organizational or governing documents of clauses (i) and any Subsidiary of the Company or (iii), ) any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyapplicable Laws.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement andand to consummate the transactions contemplated hereby subject, subject in the case of the consummation of the Merger, to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to consummate the transactions contemplated hereby, including the MergerApproval. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board of Directors (after the recommendation of the Company Special Committee) and, except with respect to the Merger for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid has been duly executed and binding agreement of the other parties heretodelivered by Parent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remediesrelief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefore may be brought (the “Bankruptcy and Equity Exception”).
(b) The Company Board has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable and fair to, and in the best interests of, the Company and its stockholders, (ii) adopted and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (iii) directed that this Agreement be submitted to the Company’s stockholders for their approval and (iv) resolved to recommend that the Company’s stockholders adopt this Agreement (collectively, the “Recommendation”).
(c) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Exchange Act of 19331934, as amended (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) or any applicable non-United States competitionstate securities or “blue sky” Laws (collectively, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 3.9, no authorization, consent or approval of, or filing with, any United States or foreign federal, state or local governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(cd) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 2.3(c) or set forth on Section 2.3(d) of the Company Disclosure Schedule, the consummation of the transactions contemplated hereby and compliance by the Company with the provisions hereof of this Agreement will not (i) result in any material violation of, or material default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, sublease or similar arrangement, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or to which any of them is a party or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due or being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet) or (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company (each of the foregoing, a “Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Charter or the certificate of incorporation Company Bylaws or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Subsidiary Government Document or (iii) conflict with or violate violate, in any material respect, any applicable Laws applicable that are material to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyits Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Merisel Inc /De/)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into and deliver this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Mergerby this Agreement. The execution Company Board at a duly held meeting has (i) determined that the terms of the Merger and the transactions contemplated by this Agreement are advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved the execution, delivery of and performance of, and adopted and declared advisable this Agreement and the consummation of Merger, and (iii) resolved to recommend that the transactions contemplated hereby have been duly and validly authorized by the Board of Directors stockholders of the Company and, except approve the adoption of this Agreement (the “Company Recommendation”) and directed that such matter be submitted for consideration by the stockholders of the Company. Except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the MergerAgreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)Enforceability Exceptions.
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCAnotification to any federal, (ii) the Securities Act of 1933state, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States local or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for the consummation filing of the Certificate of Merger, (ii) (A) the filing of a pre-merger notification and report form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and (B) any filings under any other Antitrust Laws, (iii) compliance with the applicable requirements of the Exchange Act, including the filing of the Joint Proxy Statement/Prospectus with the SEC, (iv) compliance with any applicable foreign or state securities or blue sky laws, (v) notification and approvals as required by applicable aviation Laws, including notification to the FAA and Department of Transportation, as required, and (vi) the other consents and/or notices set forth on Section 4.3(b) of the Company Disclosure Letter (collectively, clauses (i) through (vii), the “Specified Approvals”), and other than any consent, approval, authorization, permit, action, filing or notification the failure of the transactions contemplated by this Agreementwhich to make or obtain would not have, except for such authorizations, consents, approvals or filings that, if not obtained or made, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on (disregarding, for purposes of this Section 4.3(b) only, subclause (iv)(A) of the Companyfirst proviso to the definition of “Company Material Adverse Effect”).
(c) The execution execution, delivery and delivery performance by the Company of this Agreement does not, and the consummation by the Company of the Merger and the other transactions contemplated hereby by this Agreement do not and compliance with the provisions hereof will not (i) assuming receipt of the Company Stockholder Approval, contravene or conflict with, or breach any provision of, the organizational or governing documents of the Company, any of its Subsidiaries or any Company Major Unconsolidated Affiliate, (ii) assuming compliance with the matters referenced in Section 4.3(b), receipt of the Specified Approvals and the receipt of the Company Stockholder Approval, (A) contravene or conflict with or constitute a violation of any provision of any Law, judgment, writ or injunction of any Governmental Entity binding upon or applicable to the Company, any of its Subsidiaries or any Company Major Unconsolidated Affiliate or any of their respective properties or assets, or (B) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loanContract to which the Company, guarantee any of indebtedness its Subsidiaries or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right any Company Major Unconsolidated Affiliate or license binding upon the Company by which they or any of the Company’s Subsidiaries their respective properties or assets may be bound or affected, or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or Company, any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s its Subsidiaries or any of their respective properties or assetsCompany Major Unconsolidated Affiliate, other than, in the case of clauses (iii)(A) and (iiiB), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has would not hadhave, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on (disregarding, for purposes of this Section 4.3(c) only, subclause (iv)(A) of the Companyfirst proviso to the definition of “Company Material Adverse Effect”).
Appears in 1 contract
Samples: Merger Agreement (Era Group Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite the corporate power and authority to enter into this Agreement and, subject and to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to consummate the transactions contemplated hereby, including the Mergercarry out its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for obtaining the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with or the Secretary Certificate of State of the State of DelawareOwnership and Merger, as applicable, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest approved for purposes of Section 203 of the DGCL the execution and delivery by DCNA, the Purchaser and the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the MergerStock Purchase Agreement by DCNA and DDC Holdings and the consummation of the transactions contemplated hereby and thereby and has taken all appropriate action so that Section 203 of the DGCL, with respect to the Company, will not be applicable to DCNA and the Purchaser by virtue of such actions or otherwise. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of DCNA and the other parties heretoPurchaser, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability may be as limited by applicable bankruptcy, insolvency, reorganization or reorganization, moratorium, fraudulent conveyance and other Laws similar laws of general application affecting the enforcement of creditors’ ' rights generally or by principles governing and the availability of equitable remedies)relief.
(b) Other than Except for the filings, permits, authorizations, consents and approvals set forth in connection with or in compliance with (iSection 3.3(b)(i) the provisions of the DGCL and the DLLCACompany Disclosure Schedule, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the XxxxHart-Xxxxx-Xxxxxx Antitrust Xxxitrust Improvements Act of 1976, as amended (the “"HSR Act”"), (v) any applicable non-United States competition, antitrust and investment state securities or blue sky laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange or the anti-competition laws or regulations of the European Union or any other foreign jurisdiction in which the Company or DCAG (directly or through Subsidiaries, in each case ) has material assets or conducts material operations, and the “NYSE”) (filing of the consents Certificate of Merger or Certificate of Ownership and approvals referenced in clauses (i) through (vii) above being collectively referred to herein Merger, as applicable, under the “Company Approvals”)DGCL, no authorizationnone of the execution, consent delivery or approval ofperformance of this Agreement by the Company, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals hereby or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The execution and delivery compliance by the Company with any of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) conflict with or result in any breach of any provision of the certificate of incorporation, by-laws or similar organizational documents of the Company or any of its Subsidiaries, (ii) require any filing by the Company or any of its Subsidiaries with, or permit, authorization, consent or approval of, any federal, regional, state or local court, arbitrator, tribunal, administrative agency or commission or other governmental or other regulatory authority or agency, whether U.S. or foreign (a "Governmental Entity"), (iii) result in a violation or breach of, or default constitute (with or without due notice or lapse of time, time or both) under, a default (or give rise to a any right of termination, amendment, cancellation or acceleration acceleration) under, any of the terms, conditions or provisions of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreementlicense, contract, instrument, permit, concession, franchise, right agreement or license binding upon other instrument or obligation to which the Company or any of the Company’s its Subsidiaries is a party or result in the creation of any Lien upon by which any of the them or any of their properties or assets of may be bound (the "Company Agreements"), or (iv) violate any of the Company’s Subsidiariesorder, (ii) conflict with writ, injunction, decree, judgment, permit, license, ordinance, law, statute, rule or result in any violation of any provision of the certificate of incorporation or by-laws of regulation applicable to the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s its Subsidiaries or any of their respective properties or assets, other than, in excluding from the case of foregoing clauses (iii), (iii) and (iii)iv) such filings, any such violationpermits, conflictauthorizations, defaultconsents, rightapprovals, loss violations, breaches or Lien that has not had, and would not reasonably be expected to havedefaults which will not, individually or in the aggregate, have a Material Adverse Effect on the CompanyCompany or prevent or substantially delay the consummation of the transactions contemplated hereby.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing assuming Parent is not an “interested stockholder” under Section 203 of the Certificate of Merger with the Secretary of State of the State of DelawareDGCL), no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, the Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) unanimously resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (the “Company Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of Parent and Merger Sub, constitutes the legal, valid and binding agreement of the other parties hereto, constitutes a valid Company and binding agreement of the Company, is enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as such enforcement may be limited by applicable (i) the effect of bankruptcy, insolvency, reorganization reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting the enforcement of or relating to creditors’ rights generally or by principles (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remediesremedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions Section 251 of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (vvi) any applicable non-United States competitionthe Federal Power Act, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of 16 U.S.C. §§ 791a-825r and/or the European Community, as amended regulations promulgated by Federal Energy Regulatory Commission (the “ECMRFERC”) thereunder (the “FPA”), and the approval of the FERC thereunder (the “FERC Approval”), (vivii) the approval of the Massachusetts Department of Public Utilities (the “MDPU Approval”), (viii) the approval of Missouri Public Service Commission (the “MPSC Approval”), (ix) the approval of the Federal Communications Commission (the “FCC”) for the transfer of control (or assignment, as applicable) of the Company’s business radio and other Title III wireless licenses, pursuant to Section 310 of the Communications Act of 1934, as amended, 47 U.S.C. § 310(d) (the “FCC Approval”); and (x) the approvals set forth on in Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.2(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority authority, independent system operator, regional transmission organization, other market administrator, or national, regional or state reliability organization (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if that are not required to be obtained or made, would not reasonably be expected made prior to have, individually or in the aggregate, a Material Adverse Effect on the Companyconsummation of such transactions.
(c) The Except as set forth in Section 3.3(c) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement does do not, and (assuming the Company Approvals are obtained and the Requisite Regulatory Approvals are obtained without any adverse condition or restraint) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or material suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets material to the conduct of their business or result in any material violation of, or material default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Company Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws or other equivalent organizational document, in each case as amended or restated, of the Company or any of its Subsidiaries or (iii) materially conflict with or materially violate any applicable Laws.
(d) This Agreement and the Merger have been approved by the Continuing Directors of CrossCountry Energy, LLC, a Delaware limited liability company (“CrossCountry”). For the purposes of this subsection (d), the term “Continuing Director” shall have the meaning ascribed thereto in that certain Capital Stock Agreement, dated June 30, 1986, among El Paso Energy Corporation (as successor interest to Sonat, Inc. by virtue of a merger), CrossCountry (as successor in interest to Enron Corp., which in turn was the successor in interest to InterNorth, Inc. by virtue of a name change, which in turn was the successor in interest to Houston Natural Gas corporation by virtue of a merger) and Citrus Corp. relating to the ownership by El Paso and CrossCountry of the Capital Stock of Citrus and its wholly owned subsidiaries, as amended. CrossCountry is currently a “Principal” to such Capital Stock Agreement.
(e) Since December 31, 2010, except as set forth in Section 3.3(e) of the Company Disclosure Schedule, (i) neither the Company nor any of its Subsidiaries has become a party to or bound by, or has entered into any amendment, supplement or other modification of, any Contract with or for the benefit of any person that is a Potential Bidder as of the date of this Agreement that involves future expenditures or receipts by the Company or any of its Subsidiaries of more than $1.0 million in any one year period, (ii) no current director or officer of the Company, as amended in his or her individual capacity, has entered into (the “Company Organizational Documents”A) or the certificate of incorporation or by-laws any agreement, understanding or other equivalent organizational documentsarrangement (whether in writing or orally) with or for the benefit of any person that is a Potential Bidder as of the date of this Agreement or any of its directors, officers or employees or (B) any amendment, supplement or other modification to any agreement, understanding or other arrangement described in each casethe immediately preceding clause (A), as amended, (iii) neither the Company nor any of its Subsidiaries has increased the compensation or other benefits payable or provided to any of the Company’s Subsidiariescurrent or former directors or officers, (iv) neither the Company nor any of its Subsidiaries has become a party to or bound by, or has entered into any amendment, supplement or other modification of, any Contract where the rights or obligations of any of the parties thereto are, in whole or in part, dependent on or affected by the consummation or non-consummation of a business combination between the Company and any person that is a Potential Bidder as of the date of this Agreement (iiiother than pursuant to any generally applicable “change of control” provision) conflict with and (v) any Contract, amendment, supplement or violate any Laws applicable to modification described in clause (i) or (iv) above has been approved or adopted by the Board of Directors of the Company or any the Special Committee.
(f) Immediately prior to the execution and delivery of this Agreement, the Company (i) validly terminated the Energy Transfer Merger Agreement in accordance with its terms and (ii) paid or caused to be paid in full the Energy Transfer Breakup Fee in accordance with Section 7.3(c) of the Company’s Subsidiaries Energy Transfer Merger Agreement and the Energy Transfer Expense Reimbursement in accordance with Section 7.3(a) of the Energy Transfer Merger Agreement.
(g) As used in this Agreement, a “Potential Bidder” means (i) any person (including Energy Transfer), other than Parent or Merger Sub or any of their respective properties Subsidiaries, that has, since December 31, 2010, publicly announced or assetsdisclosed any Acquisition Transaction or Acquisition Proposal (or has publicly announced a bona fide intention, other thanwhether or not conditional, to take any such action) or (ii) any affiliate of any person described in the case of clauses immediately preceding clause (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Shareholder Approval and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareWashington, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has taken all necessary action so that Section 23B.19 of the WBCA will be inapplicable to this Agreement, the Voting Agreement and the transactions contemplated hereby and thereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders shareholders and (y) to recommend to such shareholders that such stockholders vote in favor of the approval they approve and adoption of adopt this Agreement and the MergerAgreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL WBCA and the DLLCAWLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) the Communications Act of 1934, as amended (the “Communications Act”) and applicable rules and regulations thereunder and any applicable laws, rules, regulations, practices and orders of any state public utility commissions (“PUCs”) or similar state or foreign regulatory bodies regulating competition and telecommunications businesses, (vi) any applicable non-United States competition, antitrust and investment laws, including any required notifications laws and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vivii) the approvals set forth on Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, each a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyCompany or significantly impair or delay the consummation of the transactions contemplated hereby and thereby.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any Lien upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of the Company’s Subsidiaries, Subsidiaries or (iii) conflict with or violate any Laws (as defined in Section 3.7(a)) applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 1 contract
Samples: Merger Agreement (Alltel Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Each of Parent and the Merger Subs has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of approval of the Company Share Issuance by the affirmative vote of a majority of votes cast by holders of Parent Common Stock (the “Parent Stockholder Approval Approval”) present at a meeting of Parent’s stockholders (as defined in Section 3.20 of this Agreementthe “Parent Stockholders’ Meeting”), to consummate the transactions contemplated herebyhereby and thereby, including the MergerMergers. The execution and delivery by Parent and the Merger Subs of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board boards of Directors directors (or equivalent) of each of Parent and the Company andMerger Subs, and except for the Parent Stockholder Approval and the filing of the First Certificate of Merger and the Second Certificate of Merger with the Secretary of State of Delaware, no other corporate proceedings on the part of either Parent or the Merger Subs or vote of Parent’s securityholders are necessary to authorize the consummation of the Mergers and the transactions contemplated hereby. The Parent Board has unanimously (i) Company Stockholder Approval determined that this Agreement and the Mergers are in the best interests of Parent and its stockholders, (ii) approved the execution, delivery and performance by Parent of this Agreement, and the consummation of the transactions contemplated hereby (including the Mergers and the Share Issuance), and (iii) resolved to recommend the approval by its stockholders of the Share Issuance and submit the Share Issuance to the stockholders of Parent for approval (the “Parent Recommendation”). This Agreement has been duly and validly executed and delivered by each of Parent and the Merger Subs, and assuming this Agreement constitutes the legal, valid and binding agreement of the Company, constitutes the legal, valid and binding agreement of Parent or the Merger Subs, as the case may be, enforceable against each of them, in accordance with their terms, except as such enforcement may be subject to the Remedies Exceptions.
(b) The board of directors (or equivalent) of each of the Merger Subs has unanimously (i) determined that this Agreement and the Mergers are in its and its sole stockholder’s or sole member’s, as applicable, best interests, (ii) approved the execution, delivery and performance by it of this Agreement and (iii) recommended the adoption of this Agreement by its sole stockholder or sole member. Parent, as the sole stockholder of Merger Sub I and the sole member of Merger Sub II, has approved the execution, delivery and performance by the Merger Subs of this Agreement and the consummation of the transactions contemplated hereby, including the Mergers, upon the terms and subject to the conditions contained herein, and has adopted this Agreement.
(c) Other than in connection with or in compliance with (i) the filing of the First Certificate of Merger and the Second Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Act of 1933Exchange Act, as amended (and the “Securities Act”)rules promulgated thereunder, (iii) the Exchange Securities Act, and the rules promulgated thereunder, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976applicable state securities, as amended (the takeover and “HSR Act”)blue sky” Laws, (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of Nasdaq, (vi) the New York Stock Exchange (HSR Act and each of the “NYSE”other Antitrust Laws set forth in Section 3.3(b)(vi) (of the consents Company Disclosure Letter and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the Parent Stockholder Approval (collectively, the “Company Parent Approvals”), and subject to the accuracy of the representations and warranties of the Company in Section 3.3(b), no authorization, consent or approval other Consent of, or filing Filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by Parent or the Company Merger Subs of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals Consents or filings Filings as are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not materially impede or delay the consummation of the Mergers and the other transactions contemplated by this Agreement and which would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on the CompanyEffect.
(cd) The execution and delivery by Parent and the Company Merger Subs of this Agreement does not, and (assuming the Parent Approvals are obtained) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of Parent or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, leaseParent Real Property Lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company Parent or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Liens other than Permitted Liens (provided that no Lien shall be deemed created by this Agreement), in each case, upon any of the properties or assets of the Company Parent or any of its Subsidiaries, except for such losses, impairments, suspensions, limitations, conflicts, violations, defaults, terminations, cancellation, accelerations, or Liens which have not had and would not reasonably be expected to have, individually or in the Company’s Subsidiariesaggregate, a Parent Material Adverse Effect, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, as amendedamended or restated, of Parent or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company Laws, except for such conflict or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that violation as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Galaxy has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Galaxy Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution Board of Directors of Galaxy at a duly held meeting has (i) determined that it is in the best interests of Galaxy and its stockholders, and declared it advisable, to enter into this Agreement, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly hereby, including the Galaxy Merger, and validly authorized by (iii) resolved to recommend that the Board stockholders of Directors Galaxy approve the adoption of this Agreement (the “Galaxy Recommendation”) and directed that such matter be submitted for consideration of the Company and, except stockholders of Galaxy at the Galaxy Meeting. Except for the (i) Company Galaxy Stockholder Approval and (ii) the filing of the Certificate Certificates of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Galaxy are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company Galaxy and, assuming this Agreement constitutes a the valid and binding agreement of Mars, Holdco and the other parties heretoMerger Subs, constitutes a the valid and binding agreement of the CompanyGalaxy, enforceable against the Company Galaxy in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or other Laws affecting the enforcement of creditors’ rights generally or by and to general equity principles governing (the availability of equitable remedies“Bankruptcy and Equity Exception”).
(b) Other than in connection The execution, delivery and performance by Galaxy of this Agreement and the consummation of the Mergers by Galaxy do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred notification to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for the consummation by the Company filing of the transactions contemplated by this AgreementGalaxy Certificate of Merger, except for such authorizations(ii) compliance with the applicable requirements of the HSR Act, consents(iii) compliance with the applicable requirements of the Exchange Act, approvals including the filing of the Joint Proxy Statement/Prospectus, (iv) compliance with the rules and regulations of the National Association of Securities Dealers and NASDAQ, (v) compliance with any applicable foreign or filings thatstate securities or blue sky laws, if not obtained and (vi) the other consents and/or notices set forth on Section 3.3(b) of the Galaxy Disclosure Schedule (collectively, clauses (i) through (vi), the “Galaxy SpecifiedApprovals”), and other than any consent, approval, authorization, permit, action, filing or made, notification the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, (A) have a Galaxy Material Adverse Effect on or (B) prevent or materially delay the Companyconsummation of the Mergers.
(c) The execution Assuming receipt of or compliance with the Galaxy Specified Approvals and the receipt of the Galaxy Stockholder Approval, the execution, delivery and performance by the Company Galaxy of this Agreement does not, and the consummation by Galaxy of the Mergers and the other transactions contemplated hereby do not and compliance with the provisions hereof will not (i) contravene or conflict with the organizational or governing documents of Galaxy or any of its Subsidiaries, (ii) contravene or conflict with or constitute a violation of any provision of any Law binding upon or applicable to Galaxy or any of its Subsidiaries or any of their respective properties or assets, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under under, any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right lease or license agreement binding upon the Company Galaxy or any of the Company’s its Subsidiaries or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company Galaxy or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (iii) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, have a Galaxy Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Gemstar Tv Guide International Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt adoption of this Agreement by holders of a majority of the outstanding shares of Company Common Stock entitled to vote thereon (the "Company Stockholder Approval (as defined in Section 3.20 of this AgreementApproval"), to consummate the transactions contemplated hereby, including the Merger. The execution execution, delivery and delivery performance by the Company of this Agreement and the consummation of the transactions contemplated hereby hereby, including the Merger, have been duly and validly authorized by the Company Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company or vote of the Company stockholders are necessary to authorize the consummation of the transactions contemplated hereby, including the Merger. The Company Board of Directors of has unanimously, subject to Section 5.3, (i) resolved to recommend that the Company has determined (x) that the transactions contemplated by stockholders adopt this Agreement (the "Company Recommendation"), (ii) determined that this Agreement and the Merger are fair to and in the best interest interests of the Company stockholders, (iii) approved this Agreement and its stockholders the Merger and (yiv) to recommend directed that such stockholders vote in favor of the approval and adoption of this Agreement and be submitted to a vote at a meeting of the MergerCompany stockholders. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the legal, valid and binding agreement of the other parties hereto, constitutes a valid Company and binding agreement of the Company, is enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as such enforcement may be limited by subject to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, reorganization moratorium or other similar Laws affecting the enforcement of creditors’ creditor's rights generally or by principles governing and the availability of equitable remediesrelief and any implied covenant of good faith and fair dealing (the "Enforceability Exceptions").
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCASecretary of State of the State of Delaware, (ii) the filing of the Form S-4 and the Proxy Statement/Prospectus with the SEC and any amendments or supplements thereto and declaration of effectiveness of the Form S-4, (iii) the U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder (the "Exchange Act"), (iv) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “"Securities Act”"), (iiiv) applicable state securities, takeover and "blue sky" laws, (vi) the Exchange Actrules and regulations of Nasdaq Global Select Market, (ivvii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “"HSR Act”), (v") and any applicable non-United States competition, international antitrust requirements and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viviii) the approvals set forth on in Section 3.3(b) of the Company Disclosure Schedule, and Schedule (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses subclauses (i) through (vii) above being collectively referred to herein as viii), the “"Company Approvals”"), no authorization, consent waiver, consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for other than such authorizations, waivers, consents, approvals orders, licenses, permits, approvals, registrations, declarations, notices and filings the failure of which to obtain or filings thatmake, if not obtained or madeas applicable, would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, and (assuming the Company Stockholder Approval and the Company Approvals are obtained) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) except as set forth in this Agreement, result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, concession, franchise, or right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a "Lien") other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of its Subsidiaries, except for such losses, suspensions, limitations, impairments, conflicts, violations, defaults, terminations, cancellation, accelerations, or Liens as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Company Subsidiary Organizational Documents or (iii) conflict with or violate any applicable Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and except as would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Material Adverse Effect on the Company.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement andand to consummate Transactions. The Company Board at a duly held meeting has (i) determined that the terms of the Merger and the Transactions are advisable, subject fair to receipt and in the best interests of the Company Stockholder Approval and its stockholders, (as defined in Section 3.20 of this Agreement)ii) approved the execution, to consummate the transactions contemplated herebydelivery and performance of, including the Merger. The execution and delivery of adopted and declared advisable this Agreement and the consummation of Transactions, including the transactions contemplated hereby have been duly Offer, the Top-Up Option and validly authorized by the Board of Directors Merger, on the terms and subject to the conditions set forth herein, and (iii) resolved to recommend that the stockholders of the Company andaccept the Offer and tender their shares to Merger Sub pursuant to the Offer, except and if required to consummate the Merger, that the stockholders of the Company adopt this Agreement under the NYBCL (the “Recommendation”). Except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareNew York, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the MergerTransactions. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)Enforceability Exceptions.
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the consummation of the Transactions by the Company do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred notification to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for the consummation by the Company filing of the transactions contemplated by Certificate of Merger with the Secretary of State of the State of New York, (ii) compliance with any applicable requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”) and any other Antitrust Laws, (iii) the filing with the SEC of Schedule 14D-9 and any other filings and reports that may be required in connection with this AgreementAgreement and the Transactions under the Exchange Act, except for such authorizations(iv) compliance with the rules and regulations of the NYSE American and (v) compliance with the applicable requirements under the Securities Act, consentsthe Exchange Act, approvals any other applicable foreign or filings thatstate securities or blue sky laws (collectively, if not obtained clauses (i) through (v), the “Specified Approvals”), and other than any consent, approval, authorization, permit, action, filing or made, notification the failure of which to make or obtain would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on (disregarding, for purposes of this Section 4.3(b) only, subclause (iv)(A) of the Companyproviso to the definition of “Company Material Adverse Effect”).
(c) The execution Assuming compliance with the matters referenced in Section 4.3(b) and receipt of the Specified Approvals, the execution, delivery and performance by the Company of this Agreement does not, and the consummation by the Company of the transactions contemplated hereby Transactions do not and compliance with the provisions hereof will not (i) contravene or conflict with the organizational or governing documents of the Company or any of its Subsidiaries, (ii) contravene or conflict with or constitute a violation of any provision of any Law binding upon or applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Significant Subsidiaries or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (iii) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on (disregarding, for purposes of this Section 4.3(c) only, subclause (iv)(A) of the Companyproviso to the definition of “Company Material Adverse Effect”).
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Seller has the requisite corporate power and authority to enter into execute and deliver this Agreement and, subject to receipt and each of the Company Stockholder Approval (as defined in Section 3.20 other Transaction Documents to which it is a party, to perform its obligations under this Agreement and each of this Agreement)the other Transaction Documents to which it is a party, and to consummate the transactions contemplated hereby, including the Mergerhereby and thereby. The execution execution, delivery and delivery performance of this Agreement and each of the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly and validly authorized by all necessary corporate action on the Board part of Directors of the Company andSeller, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of Seller (including, for the Company avoidance of doubt, the vote or approval of the stockholders of Seller) are necessary to authorize this Agreement and each of the consummation of other Transaction Documents to which it is a party, or to consummate the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to hereby and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Mergerthereby. This Agreement has and each of the other Transaction Documents to which it is a party have been duly and validly executed and delivered by the Company Seller and, assuming this Agreement constitutes a due execution and delivery by Buyer and the other parties thereto, constitute the valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the CompanySeller, enforceable against the Company Seller in accordance with its terms (their terms, except to the extent that enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability at Law) and any implied covenant of equitable remedies)good faith and fair dealing.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) Neither any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no material authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity (collectively, commission, court, body, entity or authority (each, a the “Governmental EntitySeller Approvals”) nor, except as set forth in Section 3.2(b) of the Disclosure Schedules, any Consent is necessary necessary, under applicable Law, in connection with the execution, delivery and performance of this Agreement, or any other Transaction Document to which Seller is a party, by Seller or for the consummation by the Company Seller of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals hereby or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companythereby.
(c) The execution and delivery by the Company Seller of this Agreement does and each of the other Transaction Documents to which Seller is a party, do not, the performance by Seller of its obligations under this Agreement and each of the other Transaction Documents to which it is a party to will not, and the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof by Seller will not (i) result in any violation of, or default (with or without notice or lapse of time, or both), (i) result in any violation of or default under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loanAssumed Agreement, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any Lien other than Permitted Liens upon any of the properties Purchased Assets or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate or articles of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documents, in each case, as amended, document of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanySeller.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject (in the case of the Merger) to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated herebyTransactions, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors and (in the case of the Company andMerger, except for the (i) receipt of the Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, DSOS) no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated herebyTransactions. The On or prior to the date hereof, the Company Board of Directors has unanimously (A) determined that the terms of the Company has determined (x) that the transactions contemplated by this Agreement Merger are fair to to, and in the best interest interests of, the Company and its stockholders, (B) determined that it is in the best interests of the Company and its stockholders to enter into, and declared advisable, this Agreement, (C) approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Merger upon the terms, and subject to the conditions, contained herein and (yD) has adopted a resolution to recommend that such stockholders vote in favor of make, subject to Section 5.3, the approval and adoption of this Agreement and the MergerCompany Board Recommendation. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoBroadcom Parties, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium and other similar laws affecting or other Laws affecting the enforcement of relating to creditors’ rights generally or by and subject to general principles governing of equity (the availability of equitable remedies“Bankruptcy and Equity Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust requirements of other Antitrust Laws and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) any applicable requirements of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)NASDAQ, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on and which would not reasonably be expected to prevent, materially impede or materially delay the Company’s ability to consummate the Merger and the other transactions contemplated by this Agreement.
(c) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under under, any material loan, guarantee of indebtedness Contract or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Company Subsidiaries or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s Company Subsidiaries, other than Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Company Subsidiary or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Company Subsidiaries or any of their respective properties properties, rights or assets, other than, than in the case of clauses (i), (ii) (solely with respect to Company Subsidiaries that are not Significant Subsidiaries) and (iii), any such violation, conflict, breach, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on and which would not reasonably be expected to prevent, materially impede or materially delay the Company’s ability to consummate the Transactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Broadcom Cayman L.P.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreementif required by applicable Law), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby hereby, including the Offer and the Merger, have been duly and validly authorized by the Board of Directors of the Company Company, and, except for the (i) the Company Stockholder Approval if required by applicable Law and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareSouth Carolina, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, the Board of Directors of the Company has determined (x) unanimously resolved to recommend that the Company’s stockholders accept the Offer, tender their Shares pursuant to the Offer and, if required by applicable Law, adopt this Agreement and approve the Merger and the transactions contemplated by this Agreement are fair to and in hereby (the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger“Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability at Law) and any implied covenant of equitable remedies)good faith and fair dealing.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCASCBCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iviii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended filing with the Securities and Exchange Commission (the “HSR ActSEC”)) of (A) the Schedule 14D-9 and (B) if required by applicable Law, (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of a proxy statement in definitive form relating to the European Community, as amended Company Meeting (the “ECMRProxy Statement”), ) and (viiv) the approvals set forth on in Section 3.3(b4.4(b) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent consent, Order, permit or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity entity, non-governmental self-regulatory agency, or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyhereby.
(c) The Except as set forth in Section 4.4(c) of the Company Disclosure Letter, the execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby hereby, including the Offer and the Merger, and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Company Subsidiary Organizational Documents or (iii) assuming that the consents and approvals referred to in Section 4.4(b) are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i), (ii) (to the extent relating to Subsidiaries) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect Effect; provided, that with respect to the Top-Up Option, solely for purposes of this Section 4.4(c), the limitations on the CompanyTop-Up Option in the proviso in Section 1.4(a) and the assumption in Section 4.4(c)(iii) above that the consents and approvals referred to in Section 4.4(b)(i) with respect to the SCBCA shall have been duly obtained shall, in each case, be disregarded.
Appears in 1 contract
Samples: Merger Agreement (Span America Medical Systems Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Shareholder Approval (as defined in Section 3.20 of this Agreementif required by applicable Law to consummate the Merger), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company A-12 and, except for the (i) the Company Stockholder Shareholder Approval (if required by applicable Law to consummate the Merger) and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareFlorida, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid has been duly executed by Parent and binding agreement of the other parties heretoMerger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability of equitable remediesat Law).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAFBCA, or any applicable Florida anti-takeover or investor protection statute, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iviii) the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), ) and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viiv) the approvals set forth on Section 3.3(b4.4(b) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to havenot, individually or in the aggregate, be material to the Company and its Subsidiaries taken as a Material Adverse Effect on the Companywhole.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, document of the Company or any of the Company’s Subsidiaries, its Significant Subsidiaries or (iii) assuming that the consents and approvals referred to in Section 4.4(b) are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not reasonably be expected to havenot, individually or in the aggregate, have or be reasonably expected to have a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement Agreement, and, subject to receipt of approval of this Agreement by holders of at least a majority of the outstanding shares of Company Common Stock (the “Company Stockholder Approval Approval”), and the occurrence of the shareholder advisory vote contemplated by Rule 14a-21(c) under the Exchange Act, regardless of the outcome of such vote (as defined in Section 3.20 of this Agreementthe “Company Stockholder Advisory Vote”), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby have been or shall be duly and validly authorized by the Company Board of Directors of the Company and, except for the (i) Company Stockholder Approval (and (iithe occurrence of the Company Stockholder Advisory Vote) and the filing of the First Certificate of Merger and Second Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company or vote of the Company’s securityholders are necessary to authorize the consummation of the transactions contemplated hereby. The Company Board of Directors of the Company has determined unanimously (xi) resolved to recommend that the transactions contemplated by Company’s stockholders adopt this Agreement (the “Company Recommendation”), (ii) determined that this Agreement and the Mergers are fair to advisable to, and in the best interest of interests of, the Company and its stockholders stockholders, (iii) approved the execution, delivery and (y) to recommend that such stockholders vote in favor of the approval and adoption performance of this Agreement and the MergerMergers, and (iv) resolved that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretocounterparties thereto, constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (terms, except as such enforcement may be subject to the extent that enforceability may be limited limitation of such enforcement by applicable (A) the effect of bankruptcy, insolvency, reorganization reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting the enforcement of or relating to creditors’ rights generally or by principles (B) the rules governing the availability of specific performance, injunctive relief or other equitable remediesremedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL First Certificate of Merger and Second Certificate of Merger with the DLLCASecretary of State of the State of Delaware, (ii) the Exchange Act, (iii) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976applicable state securities, as amended (the takeover and “HSR Act”)blue sky” Laws, (v) any applicable non-United States competition, antitrust the rules and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 regulations of the European Community, as amended (the “ECMR”)Nasdaq, (vi) the approvals HSR Act and each of the other Antitrust Laws set forth on in Section 3.3(b3.3(b)(vi) of the Company Disclosure ScheduleLetter, and (vii) the rules and regulations of the New York Stock Exchange Company Stockholder Approval (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as collectively, the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and the Merger Subs in Section 4.3(c), no other authorization, consent consent, order, license, Permit or approval (“Consent”) of, or registration, declaration, notice or filing (“Filing”) with, any United States, state of the United States or local, foreign or multi-national governmental or regulatory agency, commission, court, body, entity court or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals Consents or filings Filings as are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not materially impede or delay the consummation of the Mergers and the other transactions contemplated by this Agreement and which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and (assuming the Company Approvals are obtained and the Company Credit Agreement is terminated and repaid in full prior to the Effective Time) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, leaseCompany Real Property Lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (excluding, in each case, transfer restrictions of general applicability pursuant to any securities Laws) (each, a “Lien”) other than Permitted Liens (provided that no Lien shall be deemed created by this Agreement), in each case, upon any of the properties or assets of the Company or any of its Subsidiaries, except for such losses, suspensions, limitations, impairments, conflicts, violations, defaults, terminations, cancellations, accelerations or Liens which have not had and would not reasonably be expected to have, individually or in the Company’s Subsidiariesaggregate, a Company Material Adverse Effect, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, as amendedamended or restated, of the Company or any of its Subsidiaries, (iii) subject to obtaining the Company’s SubsidiariesConsents set forth in Section 3.3(c)(iii) of the Company Disclosure Letter, violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the loss of any material benefit or the imposition of any material liability under, any Company Material Contract, or (iiiiv) conflict with or violate any Laws applicable to the Company Laws, except for such conflict or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that violation as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement andsubject, subject in the case of the Merger, if required by applicable Law, to receipt obtaining the Company Stockholder Approval. The Board of Directors (acting upon the unanimous recommendation of the Special Committee) at a duly held meeting has unanimously (i) determined that the Offer, the Merger and the other transactions contemplated hereby are fair and in the best interests of the Company Stockholder Approval and its stockholders (as defined in Section 3.20 of other than Parent, Merger Sub and their Affiliates), and declared it advisable to enter into this Agreement); (ii) approved the execution, to consummate the transactions contemplated hereby, including the Merger. The execution delivery and delivery performance of this Agreement and the consummation of the transactions contemplated hereby have been duly hereby, including the Offer and validly authorized by the Board of Directors Merger; (iii) resolved to recommend that the stockholders of the Company andtender their Shares in the Offer or otherwise approve the adoption of this Agreement (the “Recommendation”) and directed that, except to the extent required by the DGCL, this Agreement and the Merger be submitted for consideration of the stockholders of the Company at the Company Meeting; (iv) if applicable, rendered any Takeover Laws and the limitations on business combinations contained in Section 203 of the DGCL inapplicable to the Offer, the Merger, this Agreement, the Support Agreements and the transactions contemplated hereby; and (v) authorized and approved the Top-Up Option and the issuance of the Top-Up Shares thereunder. Except, in the case of the Merger, if required by applicable Law for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (terms, except to the extent that as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization reorganization, preference, fraudulent transfer, moratorium or other Laws similar laws relating to or affecting the rights and remedies of creditors and by general principles of equity regardless of whether enforcement of creditors’ rights generally is considered in a proceeding in equity or by principles governing the availability of equitable remedies)at law.
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions hereunder by the Company do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCAnotification to any federal, (ii) the Securities Act of 1933state, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States local or foreign governmental or regulatory agency, commission, court, arbitrator, body, entity entity, authority or authority stock exchange (each, a “Governmental Entity”) is necessary for or the London Stock Exchange other than (i) the filing of the Certificate of Merger, (ii) compliance with the applicable requirements of the Exchange Act, including the filing of the Schedule 14D-9 in connection with the Offer and the Information Statement, if applicable, in connection with the Company Stockholder Approval, (iii) compliance with the rules and regulations of the London Stock Exchange, (iv) compliance with any applicable foreign or state securities or blue sky Laws, and (v) the other consents and/or notices set forth on Section 4.4(b) of the Company Disclosure Schedule (collectively, clauses (i) through (v), the “Specified Approvals”), and other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Assuming the accuracy of the representation of Parent and Merger Sub set forth in Section 5.7, no restrictions of any Takeover Laws apply or purport to apply to the Company with respect to this Agreement, the Offer, the Merger or any of the other transactions contemplated by this Agreement.
(c) Assuming compliance with the matters referenced in Section 4.4(b), receipt of the Specified Approvals and, in the case of the Merger, to the extent required by applicable Laws, the receipt of the Company Stockholder Approval, the execution, delivery and performance by the Company of this Agreement, the consummation by Parent of the Offer and the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, Merger and the consummation of the other transactions contemplated hereby do not and compliance with the provisions hereof will not (i) contravene or conflict with the organizational or governing documents of the Company or any of its Subsidiaries, or (ii) contravene or conflict with in any material respect or constitute a material violation of any provision of any Law binding upon or applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material written or oral loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license or other legally binding arrangement (each, a “Contract”) binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses clause (iii) and or (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority authority, and has taken all corporate action necessary, to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), and to consummate the transactions contemplated herebyTransactions, including the Offer and the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company or the Company Subsidiary are necessary to authorize the consummation of the transactions contemplated herebyTransactions other than, with respect to the Merger. The Board Prior to the execution of Directors of this Agreement, at a meeting duly called and held, the Company has Board unanimously (i) determined (x) that the transactions contemplated by this Agreement and the Transactions, including the Offer and the Merger, are advisable, fair to and in the best interest interests of the Company and its stockholders stockholders, (ii) approved and declared advisable the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the DGCL, (iv) resolved that the Merger may be effected pursuant to Section 251(h) of the DGCL; and (yiv) resolved to (A) recommend that such the Company’s stockholders vote in favor of tender their Shares to Merger Sub pursuant to the approval Offer and approve the adoption of this Agreement and the MergerTransactions (such recommendation, the “Company Board Recommendation”) and (B) include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders, which resolutions, subject to Section 6.2, have not been subsequently amended, withdrawn or modified as of the date of this Agreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid due authorization, execution and binding agreement of the other parties heretodelivery by Parent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium or other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally and equitable principles of general applicability (the “Bankruptcy and Equity Exception”). If the Merger is consummated in accordance with Section 251(h) of the DGCL as contemplated hereby, no vote of the Company’s stockholders or by principles governing any holder of Shares is necessary to authorize or adopt this Agreement or to consummate the availability of equitable remedies)Transactions.
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCASecretary of State of the State of Delaware, (ii) the Securities Act of 1933and any applicable state securities, as amended (the takeover and “Securities Act”)blue sky” Laws, (iii) the Exchange Act, (iv) any applicable requirements of any Antitrust Laws set forth on Section 4.3(b) of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976Company Disclosure Letter, as amended (the “HSR Act”), and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)NASDAQ, no notice to, authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such notices, authorizations, consents, approvals or filings that, if not obtained or made, would not materially impede or delay the consummation of the Offer or the Merger and the other Transactions or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 4.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof of this Agreement will not (i) require any consent, waiver or notice under, conflict with, result in any violation or breach of, or constitute a default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, purchase, termination, modification, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise or right or license binding upon the Company or any of the Company’s Subsidiaries Company Subsidiary or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s SubsidiariesCompany Subsidiary, other than Company Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiariesorganizational documents of the Company Subsidiary, or (iii) conflict with or violate any Laws or order, writ, injunction, decree, rule or regulation applicable to the Company or any of the Company’s Subsidiaries Company Subsidiary, or to which the Company or the Company Subsidiary or any of their respective properties or assetsassets are subject, other thanexcept as would not, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Shareholder Approval (as defined in Section 3.20 of this Agreement4.5), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors Board, acting upon the unanimous recommendation of the Company Special Committee, and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareShareholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors As of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest date hereof, each member of the Company Board (with the Chairman of the Board abstaining) and its stockholders and (y) the Special Committee of the Board has unanimously resolved to recommend that such stockholders vote in favor of the approval and adoption of Company’s shareholders approve this Agreement and the Mergertransactions contemplated hereby (including the Special Committee’s recommendation, the “Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoBuyer, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability at law) and any implied covenant of equitable remedies)good faith and fair dealing.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (ii) filing to record the termination of security interest held by Emigrant in the Acquired Assets required under the Uniform Commercial Code and (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals Regulatory Approvals set forth on Section 3.3(b4.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyhereby.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of (including the Company’s SubsidiariesAcquired Assets), (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documentslaws, in each case, case as amended, of any of the Company’s Subsidiaries, Company or (iii) assuming that the consents and approvals referred to in Section 4.3(b) are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, except in the case of clauses (i) and (iii), for any such violationviolations, conflict, default, right, loss defaults or Lien that has not had, and conflicts which would not reasonably be expected materially adverse to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ivivi Technologies, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) the Company Stockholder Shareholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareOhio, no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or the consummation of the transactions contemplated hereby. The As of the date of this Agreement, the Board of Directors of the Company has unanimously determined and resolved (xi) that the transactions contemplated by this Agreement are Merger is fair to to, and in the best interest of interests of, the Company and its stockholders shareholders, (ii) to propose this Agreement and the transactions contemplated hereby for approval and adoption by the Company’s shareholders and (yiii) to recommend that such stockholders vote in favor of the approval Company’s shareholders approve and adoption of adopt this Agreement and the Mergertransactions contemplated hereby and such resolutions have not been rescinded or modified. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAOGCL, (ii) the Securities Exchange Act of 19331934, as amended (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), ) and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viiv) the approvals set forth on Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.8, no authorization, consent consent, permit, action or approval of, or filing with, or notification to, any United States federal, state or local or foreign governmental or regulatory agency, commission, court, body, entity or authority or arbitral tribunal (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals permits, actions, approvals, filings or filings notifications that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof of this Agreement by the Company will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or impair the Company’s or any of its Subsidiaries’ rights or alter the rights or obligations of any third party under, or give rise to a right of termination, amendment, cancellation or acceleration of any obligation or to the lossof, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any a Lien upon (other than a Permitted Lien) on any of the properties or assets of the Company or any of its Subsidiaries under, any of the Company’s Subsidiariesterms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement, arrangement or understanding or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound (the “Company Agreements”), (ii) conflict with or result in any violation of any provision of the certificate Company Articles, the Company Regulations or the organizational or governing documents of incorporation or by-laws any Subsidiary of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflictimpairment, right, default, righttermination, loss amendment, cancellation or Lien acceleration that has not had, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Lesco Inc/Oh)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject (in the case of the Merger) to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to perform its obligations hereunder and consummate the transactions contemplated hereby, including the Merger. The execution execution, delivery and delivery performance by the Company of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company (in the case of the Merger) and, except for the (i) receipt of the Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The On or prior to the date hereof, the Board of Directors of the Company has determined unanimously (xw) that taken such actions necessary to amend Schedule I to the Stockholders’ Agreement to permit the transactions contemplated by this Agreement, (x) resolved that this Agreement and the transactions contemplated hereby are fair to and in the best interest interests of the Company and its stockholders and stockholders, (y) approved and declared advisable this Agreement and the transactions contemplated hereby on the terms and subject to the conditions set forth herein, in accordance with the requirements of the DGCL, and (z) resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of adopting this Agreement and the Mergertransactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, fraudulent transfer, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting or relating to the enforcement of creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Competition Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Clearance, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 4.3(b), the consummation of the transactions contemplated hereby by this Agreement and compliance with the provisions hereof will not (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrumentMaterial Lease, permit, concession, franchise, franchise or right or license binding upon the Company or any of the Company’s Subsidiaries Acquired Companies, or result in the creation of any Lien upon any of the properties properties, rights or assets of the Company or any of the Company’s SubsidiariesAcquired Companies, other than Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, documents of any of the Company’s Subsidiaries, Acquired Company or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries Acquired Companies or any of their respective properties or assets, other than, than in the case of clauses (i), (ii) and (iii), any such violation, breach, conflict, default, termination, modification, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect.
(d) The Company acknowledges and agrees that none of the CompanyClosing Stock Merger Consideration, the Parent Warrants or the shares of Parent Common Stock issuable upon exercise of the Parent Warrants will be registered under the Securities Act or any state securities laws at the time of issuance thereof and will not be permitted to be offered or sold other than pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from the registration requirements thereunder.
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Shareholder Approval, to consummate the transactions contemplated hereby, including the MergerTransactions. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Board of Directors acting upon a receipt of a recommendation by the Company Special Committee and, except for the (i) the Company Stockholder Shareholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or the consummation of the transactions contemplated herebyTransactions. The As of the date of this Agreement, the Board of Directors Directors, acting upon a receipt of a recommendation by the Company Special Committee, has determined unanimously (w) approved this Agreement and the Merger and the other Transactions in accordance with the DGCL; (x) determined that the transactions contemplated by this Agreement and the Transactions are fair to to, and in the best interest of interests of, the Company and its stockholders (other than the Rollover Holders as to which no determination has been made) and (y) to recommend that such stockholders vote in favor of the approval approved and adoption of declared advisable this Agreement and the MergerTransactions; (y) agreed to propose this Agreement and the Transactions for approval and adoption by the Company’s stockholders and (z) recommended that the Company’s stockholders approve and adopt this Agreement and the Transactions (the “Company Board Recommendation”), and such resolutions pursuant to which such actions were taken have not been rescinded or modified. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms subject to (except to the extent that enforceability may be limited by i) applicable bankruptcy, insolvency, reorganization reorganization, fraudulent transfer, moratorium or other similar Laws from time to time in effect affecting the enforcement of creditors’ rights generally generally, and (ii) general principles of equity, whether such principles are considered in a proceeding at Law or by principles governing the availability of equitable remedies)in equity.
(b) The Special Committee of the Board of Directors of the Company, at a meeting duly called and held, has unanimously (i) determined that this Agreement and the Transactions, including the Merger, are fair to and in the best interests of the stockholders of the Company (other than the Rollover Holders as to which no determination has been made), (ii) approved and declared advisable this Agreement and the Transactions, including the Merger, and (iii) recommended that the Company’s Board of Directors approve and declare advisable this Agreement and the Transactions, including the Merger.
(c) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCASecretary of State of the State of Delaware pursuant to the DGCL, (ii) the filing with the SEC of the Proxy Statement and such other filings, if any, required under and in compliance with other applicable requirements of the Securities Exchange Act of 19331934, as amended (the “Securities Exchange Act”), and (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the other approvals set forth on Section 3.3(b3.3(c) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no material authorization, consent consent, permit, action or approval of, or material filing with, or material notification to, any United States federal, state or local or foreign governmental or regulatory agency, commission, court, body, entity or authority or arbitral tribunal (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyTransactions.
(cd) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 3.3(c)or in Section 3.3(d)of the Company Disclosure Schedule, the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof of this Agreement by the Company will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or impair the Company’s or any of its Subsidiaries’ rights or alter the rights or obligations of any third party under, or give rise to a right of termination, amendment, cancellation or acceleration of any obligation or to the lossof, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any a Lien upon (other than a Permitted Lien) on any of the properties or assets of the Company or any of its Subsidiaries under, or require any notice or payment under, any of the Company’s Subsidiariesterms, conditions or provisions of any material note, bond, mortgage, indenture, lease, license, contract, agreement, arrangement or understanding or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound (the “Company Agreements”), (ii) conflict with or result in any violation of any material provision of the certificate Company Certificate, the Company Bylaws or the organizational or governing documents of incorporation or by-laws any Subsidiary of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate in any Laws material respect any applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyLaws.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement3.18), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the unanimous vote of the Board of Directors of the Company and, (assuming the accuracy of Parent’s representation and warranty contained in Section 4.11) except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has unanimously determined (x) that the Merger is advisable and that this Agreement and the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) as of the date of this Agreement, to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and approval of the MergerMerger and the other transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than No consent, approval, clearance, certificate, waiver, permit, decision or order (each, a “Consent”) of or from, or registration, declaration, notice or filing made to or with, any federal, national, state, provincial or local government, whether domestic or foreign, or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, whether domestic, foreign or supranational (a “Governmental Entity”), is required to be obtained or made with respect to the Company, any Subsidiary of the Company or any Company License (as defined in Section 3.21(a)) (for the avoidance of doubt, this Section 3.3(b) shall not be deemed to address those Consents required to be obtained or made with respect to any Parent License, which are addressed in Section 4.3(b), or any Consents required solely due to the assets or contractual arrangements of Parent) in connection with the execution and delivery of this Agreement or in compliance with the Company’s performance of its obligations hereunder or the consummation of the Merger and the other transactions contemplated by this Agreement, other than (i) (A) the provisions filing with the Securities and Exchange Commission (the “SEC”) of the DGCL Proxy Statement in preliminary and the DLLCAdefinitive form, (iiB) the filing with the SEC, and declaration of effectiveness under the Securities Act of 1933, as amended amended, and the related rules and regulations promulgated thereunder (the “Securities Act”), of the Form S-4, and (iiiC) the filing with the SEC of such reports under, and such other compliance with, the Securities Exchange Act of 1934, as amended, and the related rules and regulations promulgated thereunder (the “Exchange Act”), and the Securities Act, as may be required in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, (ivii) compliance with and filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (viii) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 the filing of the European CommunityCertificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of the other jurisdictions in which Parent and the Company and their respective Subsidiaries are qualified to do business, as amended (iv) such Consents from, or registrations, declarations, notices or filings made to or with, the Federal Communications Commission (the “ECMRFCC”) as are required in order to effect the transfer of control of the Company Licenses or as are otherwise necessary to consummate and make effective the Merger and the other transactions contemplated by this Agreement, as listed in Section 3.3(b)(iv) of the Company Disclosure Letter (the “Company FCC Consents”), (v) such Consents from, or registrations, declarations, notices or filings made to or with, State PSCs (as defined in Section 3.21(a)) as are required in order to effect the transfer of control of the Company Licenses or as are otherwise necessary to consummate and make effective the Merger and the other transactions contemplated by this Agreement, as listed in Section 3.3(b)(v) of the Company Disclosure Letter (the “Company PSC Consents”), (vi) the such filings with and approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, NASDAQ as are required to permit the consummation of the Merger and (vii) the rules such other matters that have not had, and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not not, (i) violate in any material respect, or result in any violation of, or a material default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractcontract (including any Company Material Contracts (as defined in Section 3.20(a) but excluding any Company Benefit Plans or any Company Individual Agreements, which are covered under Section 3.9), instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any Lien upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) , or the certificate of incorporation or by-laws bylaws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, righttermination, loss cancellation, acceleration, loss, alteration, impairment, Lien or Lien conflict that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company Parent has requisite the corporate power and authority to enter into this Agreement and, subject and to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to consummate the transactions contemplated hereby, including the Mergercarry out its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval Parent and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company Parent are necessary to authorize the consummation of the transactions contemplated hereby. The Board Boards of Directors of the Company has Parent and Merger Sub have determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest interests of the Company such entities and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Mergertheir respective stockholders. This Agreement has been duly and validly executed and delivered by the Company Parent and Merger Sub and, assuming this Agreement constitutes a valid and binding agreement of the other parties heretoCompany, this Agreement constitutes a valid and binding agreement of the CompanyParent and Merger Sub, enforceable against the Company them in accordance with its terms (except to the extent that insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws similar laws affecting the enforcement of creditors’ ' rights generally generally, or by principles governing the availability of equitable remedies).
(b) . Neither Parent nor Merger Sub is subject to or obligated under any charter, by-law or contract provision or any license, franchise or permit, or subject to any order or decree, which would be breached or violated by its executing or carrying out the transactions contemplated by this Agreement, except for any breaches or violations which would not, individually or in the aggregate, have a Material Adverse Effect on Parent. Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADelaware Law, (ii) the Securities Act of 1933, as amended (the “"Securities Act”"), the Securities Exchange Act of 1934, as amended (iii) the "Exchange Act"), (iv) the XxxxHart-Xxxxx-Xxxxxx Antitrust Xxxitrust Improvements Act of 1976, as amended (the “"HSR Act”"), Section 4043 of ERISA (vas defined in Section 3.8) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 the securities or blue sky laws of the European Communityvarious states (collectively, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company "Parent Required Approvals”"), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity body or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company Parent of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings thatfilings, if not obtained the failure to obtain or made, make which would not reasonably be expected to havenot, individually or in the aggregate, have a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, and Parent or substantially impair or delay the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any Lien upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyhereby.
Appears in 1 contract
Samples: Merger Agreement (Bayard Drilling Technologies Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Shareholder Approval (as defined in Section 3.20 of this Agreementhereinafter defined), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) the Company Stockholder Shareholder Approval (as hereinafter defined), (ii) compliance with Article TENTH of the Company’s articles of incorporation and (iiiii) the filing of the Articles of Merger with the Secretary of State of the State of Florida and the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, the Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) resolved to recommend that such stockholders vote in favor of the approval and adoption of Company’s shareholders approve this Agreement and the Mergertransactions contemplated hereby (the “Company Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL FBCA and the DLLCADGCL, (ii) the Securities Act of 1933, as amended 1933 (the “Securities Act”), (iii) the Securities Exchange Act of 1934 (the “Exchange Act, ”) and (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as collectively, the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet or (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company and is immaterial in amount (each of the foregoing, a “Company Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or (iii) conflict with or violate any of their respective properties or assetsapplicable Laws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (McClatchy Co)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval Shareholder Consent, to complete the transactions contemplated hereby. The Board of Directors of the Company at a duly held meeting has: (as defined i) determined that it is in Section 3.20 the best interests of the Company and the Company Shareholders and declared it advisable to enter into this Agreement, (ii) approved the execution, delivery and performance of this Agreement), to consummate Agreement and the completion of the transactions contemplated hereby, including the Merger. The execution and delivery of , (iii) resolved to recommend to the Company Shareholders that they approve this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors (iv) directed that such matter be submitted for consideration of the Company and, except Shareholders pursuant to Section 7.4 of this Agreement. Except for the (i) Company Stockholder Approval Shareholder Consent and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareWashington, no other corporate proceedings on the part of the Company are necessary to authorize the consummation completion of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoPurchaser and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable Laws of general application relating to bankruptcy, insolvencyinsolvency and the relief of debtors, reorganization or and rules of Law governing specific performance, injunctive relief and other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the completion of the Merger by the Company do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred notification to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyagency (including any state courts or any state regulatory agencies), commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for the consummation by filing of the Articles of Merger, and compliance with the HSR Act, if required (collectively, the “Specified Approvals”), and (ii) any consent, approval, authorization, permit, action, filing or notification set forth in Section 4.3(b) of the Company Disclosure Schedule, the failure of which to make or obtain would not prevent or materially delay completion of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyMerger.
(c) The execution Assuming receipt of or compliance with the Specified Approvals and the receipt of the Company Shareholder Consent, the execution, delivery and performance by the Company of this Agreement does not, and the consummation completion by the Company of the Merger and the other transactions contemplated hereby do not and compliance with the provisions hereof will not (i) contravene or conflict with the organizational or governing documents of the Company, (ii) contravene or conflict with or constitute a violation of any provision of any Law binding upon or applicable to the Company or any of its properties or assets, or (iii) except as set forth in Section 4.3(c) of the Company Disclosure Schedule, result in any violation of, or default (with or without notice or lapse of AGREEMENT AND PLAN OF MERGER 22 time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under under, any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries Material Contract or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 1 contract
Samples: Merger Agreement (Avista Corp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remediesrelief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought (clauses (i) and (ii), the “Enforceability Exceptions”).
(b) Other than in connection with Except as may be required under or in compliance with relation to (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 19331934 (the “Exchange Act”), as amended (iii) the Securities Act of 1933 (the “Securities Act”), (iiiiv) the Exchange Actrules and regulations of the NYSE, (ivv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (vvi) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European CommunityFederal Power Act, as amended (the “ECMRFPA”), (vi) and the approvals set forth on Section 3.3(b) approval of the Company Disclosure ScheduleFederal Energy Regulatory Commission (the “FERC”) thereunder (the “FERC Approval”), and (vii) the rules and regulations of the New York Stock Exchange Public Utility Commission of Texas (the “NYSEPUCT”) and the approval of the PUCT thereunder, or PUCT’s determination that no such approval is required, (viii) the New York Public Service Law, as amended, (the “PSL”) (including §69 and §70 thereof) and the consents approval of the New York Public Service Commission (the “NYPSC”) thereunder, or NYPSC’s determination that no such approval is required, (ix) the rules and regulations of the California Public Utilities Commission (the “CPUC”), (x) the rules and regulations of the Nuclear Regulatory Commission (“NRC”) and the approval of the NRC thereunder, or the NRC’s determination that no such approval is required, (xi) pre-approvals referenced of license transfers by the Federal Communications Commission (the “FCC”) and (xii) the approvals set forth in Section 4.3(b) of the Company Disclosure Schedule (the approvals or other actions contemplated by clauses (i) through (vii) above being collectively referred to herein as xi), collectively, the “Company Approvals”), and, subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 5.3(b), no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States, state of the United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that are not required to be obtained or made prior to consummation of such transactions or that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 4.3(b), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, deed of trust, security interests, equities or charges of any kind (each, a “Lien”), other than any Company Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amendedamended or restated, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaw, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect.
(d) The Board of Directors of the Company has, at a meeting duly called and held, duly adopted resolutions (i) determining that it is in the best interest of the Company and its stockholders, and declaring it advisable, to enter into this Agreement, (ii) authorizing and approving the execution, delivery and performance of this Agreement in accordance with its terms and the consummation of the transactions contemplated hereby, including the Merger, (iii) directing that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders, (iv) recommending that the Company’s stockholders adopt this Agreement (this clause (iv), the “Company Recommendation”), (v) rendering the restrictions in Part II of Article Twelve of the Company’s certificate of incorporation (the “Charter Restrictions”) inapplicable to the transactions contemplated by this Agreement (including the Merger), and (vi) rendering the restrictions on “business combinations” (as defined in Section 203 of the DGCL) as set forth in Section 203 of the DGCL (the “DGCL 203 Restrictions”) inapplicable to this Agreement and the transactions contemplated hereby (including the Merger), which resolutions, as of immediately prior to the execution of this Agreement, have not been rescinded, modified or withdrawn.
Appears in 1 contract
Samples: Merger Agreement (NRG Energy, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite the corporate power and authority to enter into this Agreement and, subject and to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to consummate the transactions contemplated hereby, including the Mergercarry out its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing approval of the Certificate of Merger with the Secretary of State of the State of Delawareits stockholders, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of this Agreement and the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that to such stockholders that they vote in favor of the approval and adoption of this Agreement and the Mergerthereof. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid has been duly and binding agreement of validly executed and delivered by the other parties hereto, this Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws similar laws affecting the enforcement of creditors’ ' rights generally generally, or by principles governing the availability of equitable remedies).
(b) . The Company is not subject to or obligated under any charter, bylaw or contract provision or any licenses, franchise or permit, or subject to any order or decree, which would be breached or violated by its executing or, subject to the approval of its stockholders, carrying out this Agreement, except as otherwise previously disclosed in writing to Parent and for any breaches or violations which would not, in the case of any contract provision, license, franchise, permit, order or decree, in the aggregate, have a Material Adverse Effect on the Company. Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 19331933 (the "Securities Act"), the Securities Exchange Act of 1934, as amended (the “Securities "Exchange Act”"), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “"HSR Act”"), Section 4043 of ERISA (v) as defined in Section 3.8), any applicable non-United States other competition, antitrust and investment laws, including any required notifications laws and filings under Council Regulation (EC) 139/2004 the securities or blue sky laws of the European Communityvarious states, as amended (and, other than the “ECMR”), (vi) the approvals set forth on Section 3.3(b) filing of the Company Disclosure Schedule, Certificate of Merger with the Delaware Secretary of State and (vii) any necessary state filings to maintain the rules and regulations good standing or qualification of the New York Stock Exchange Surviving Corporation (collectively, the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “"Company Required Approvals”"), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity body or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings thatfilings, if not obtained the failure to obtain or mademake which would not, would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect on the Company.
(c) The execution and delivery by ; provided that the Company of this Agreement does not, and the consummation makes no representation with respect to such of the transactions contemplated hereby and compliance with foregoing as are required by reason of the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse regulatory status of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company Parent or any of the Company’s its Subsidiaries or result in the creation of any Lien upon facts specifically pertaining to any of the properties or assets of the Company or any of the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companythem.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to the receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated herebyby this Agreement, including the Merger. The execution execution, delivery and delivery performance of this Agreement by the Company and the consummation of the transactions contemplated hereby Merger have been duly and validly authorized by the Company Board of Directors of the Company and, except for other than the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delawareother than as set forth in Section 4.3(c), no other corporate proceedings on the part of the Company or vote of the Company’s stockholders are necessary to authorize the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated herebyMerger. The Company Board of Directors has unanimously (i) determined that the terms of this Agreement and the Merger are fair to, and in the best interests of, the Company and its stockholders, (ii) determined that it is in the best interests of the Company has determined and its stockholders, and declared it advisable, to enter into this Agreement, (xiii) duly and validly approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Merger upon the terms and subject to the conditions contained herein, (iv) directed that the adoption of this Agreement be submitted to a vote at a meeting of the Company’s stockholders and (v) subject to Section 6.3, resolved to make the Company Recommendation, and to include such Company Recommendation in the Proxy Statement.
(b) The affirmative vote of the holders of a majority of the issued and outstanding shares of Company Common Stock in favor of the adoption of this Agreement (the “Company Stockholder Approval”) is the only vote of the holders of any class or series of Company capital stock that is necessary under applicable Law and the Company Certificate and Company By-laws to adopt, approve or authorize this Agreement, for the Company to engage in the transactions contemplated by this Agreement are fair and to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and consummate the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies).
(bc) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCADelaware Secretary of State, (ii) the filing of the Proxy Statement and any amendments or supplements thereto with the SEC, (iii) the U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder (the “Exchange Act”),
(iv) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iiiv) applicable state securities, takeover and “blue sky” laws, (vi) the Exchange Actrules and regulations of the NYSE, (ivvii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European CommunityUnion, as amended (the “ECMREU Merger Regulation”), ) and any other requisite clearances or approvals under any other applicable Antitrust Laws and (viviii) the Company Stockholder Approval and (ix) the approvals set forth on in Section 3.3(b4.3(c) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent consent, Order, license, permit or approval of, or registration, declaration, notice or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementMerger, except for such authorizations, consents, Orders, licenses, permits, approvals or filings that are not required to be obtained or made prior to consummation of the Merger or that, if not obtained or made, have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(cd) The execution and delivery by the Company of this Agreement does not, and (assuming the Company Approvals are obtained) the consummation of the transactions contemplated hereby Merger and compliance with the provisions hereof of this Agreement will not (i) result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Lien Liens other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Company Subsidiary Organizational Documents or (iii) conflict with or violate any applicable Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other thanexcept, in the case of clauses (i) and (iii), any for such violationlosses, conflictsuspensions, defaultlimitations, rightimpairments, loss conflicts, violations, defaults, terminations, cancellation, accelerations, or Lien that Liens as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreementhereinafter defined), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company Company, acting upon the unanimous recommendation of the Special Committee, and, except for the (i) the Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareKansas, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, each of the Board of Directors of the Company has determined (xwith 3 directors abstaining) that and the transactions contemplated by this Agreement are fair to and in the best interest Special Committee of the Company and its stockholders and (y) Board of Directors has unanimously resolved to recommend that such the Company’s stockholders vote in favor of the approval and adoption of approve this Agreement and the Mergertransactions contemplated hereby (including the Special Committee’s recommendation, the “Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability at law) and any implied covenant of equitable remedies)good faith and fair dealing.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAKGCC, (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR ActXXX Xxx”), (xx) xxx Xxxxxxxxxxx Xxx (Xxxxxx) and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b3.4(b) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of its Subsidiaries or, to the Company’s Subsidiaries Knowledge, the Company Joint Ventures or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of its Subsidiaries or, to the Company’s SubsidiariesKnowledge, the Company Joint Ventures, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of its Subsidiaries or, to the Company’s SubsidiariesKnowledge, the Company Joint Ventures or (iii) assuming that the consents and approvals referred to in Section 3.4(b) are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, required consent, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Kinder Morgan Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Shareholder Approval (as defined in Section 3.20 of this Agreementhereinafter defined), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company Company, acting upon the unanimous recommendation of the Special Committee, and, except for the (i) the Company Stockholder Shareholder Approval and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareTexas, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Each of the Board of Directors of the Company has determined (x) that and the transactions contemplated by this Agreement are fair to and in the best interest Special Committee of the Company and its stockholders and (y) Board of Directors has resolved to recommend that such stockholders vote in favor of the approval and adoption of Company’s shareholders approve this Agreement and the Mergertransactions contemplated hereby (including the Special Committee’s recommendation, the “Recommendation”), provided that a withdrawal or modification after the date hereof by the Board or the Special Committee of its Recommendation consistent with Section 5.3(d) shall not be deemed a breach of the foregoing sentence of this Section 3.4(a). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of Parent and Merger Sub, constitutes the valid and binding agreement of the other parties hereto, constitutes a valid and binding agreement of the -12- Company, enforceable against the Company in accordance with its terms terms, except that such enforceability (except to the extent that enforceability i) may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or other Laws affecting relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or by principles governing in equity, and any implied covenant of good faith and fair dealing (the availability of equitable remedies“Bankruptcy and Equity Exception”).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, TBCA (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (viiiv) the rules and regulations of the New York Stock Exchange competition approvals in foreign countries (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as collectively, the “Company Approvals”), ) no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation obligation, payment of any consent or similar fee, or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate articles of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) assuming that the consents and approvals referred to in Section 3.4(b) are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, required consent, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect.
(d) The Company has provided Parent with a true and complete copy of the CompanyTalon Merger Agreement, including all schedules and exhibits thereto. The Talon Merger Agreement, effective as of the signing of this Agreement, has been validly terminated.
Appears in 1 contract
Samples: Merger Agreement (Egl Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)if applicable with respect to the Merger, to consummate the transactions contemplated hereby, including the Merger. The execution Board of Directors, acting upon the recommendation of the Special Committee, at a duly called and held meeting, has unanimously adopted resolutions (i) determining that the terms of the Offer, the Merger and the other transactions contemplated by this Agreement are fair to and in the best interests of the Company and its stockholders, and declaring this Agreement advisable, (ii) approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly hereby, including the Offer and validly authorized the Merger, (iii) resolving to recommend that the stockholders of the Company accept the Offer, tender their Shares to Merger Sub pursuant to the Offer and, if applicable, approve and adopt this Agreement and the Merger (the “Recommendation”), and (iv) resolving to make the Recommendation to the stockholders of the Company and directing, that, to the extent required by the DGCL, this Agreement and the Merger be submitted for consideration of the stockholders of the Company at the Company Meeting. The Board of Directors has consented to the inclusion of the Company andBoard Actions (including, except without limitation, the Recommendation) in the Schedule 14D-9 and the Offer Documents. Except for the (i) Company Stockholder Approval and (ii) if applicable with respect to the filing of the Certificate of Merger with the Secretary of State of the State of DelawareMerger, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, subject to (except to the extent that enforceability may be limited by A) applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or by principles governing in equity) (collectively, the availability of equitable remedies“Enforceability Exceptions”).
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the consummation of the Merger by the Company do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCAnotification to any federal, (ii) the Securities Act of 1933state, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States local or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for the consummation by filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL, (ii) compliance with the applicable requirements of the Exchange Act, including the filing of the Schedule 14D-9 in connection with the Offer and the Proxy Statement, if applicable, in connection with the Company Stockholder Approval, (iii) compliance with the rules and regulations of NASDAQ, (iv) compliance with the transactions contemplated by this AgreementHSR Act and (v) compliance with any applicable foreign or state securities or blue sky laws (collectively, except for such authorizationsclauses (i) through (v), consentsthe “Specified Approvals”), approvals and other than any consent, approval, authorization, permit, action, filing or filings that, if not obtained notification the failure of which to make or made, obtain would not reasonably be expected to (A) have, individually or in the aggregate, a Company Material Adverse Effect on or (B) prevent or materially delay the Companyconsummation of the Offer or the Merger.
(c) The execution Assuming compliance with the matters referenced in Section 4.4(b), receipt of the Specified Approvals and the receipt of the Company Stockholder Approval if applicable with respect to the Merger, the execution, delivery and performance by the Company of this Agreement does notAgreement, the consummation by Merger Sub of the Offer and the consummation by the Company of the Merger and the other transactions contemplated hereby do not and compliance with the provisions hereof will not (i) result in any violation of, contravene or default (conflict with the organizational or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries or result in the creation of any Lien upon any of the properties or assets governing documents of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (ii) contravene or conflict with or result in any constitute a material violation of any provision of the certificate of incorporation any Law binding upon or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s its Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), than any such violation, conflict, default, right, loss contravention or Lien conflict that has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and to perform its obligations under this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Special Committee and the Board of Directors of the Company and, except for the (i) the Company Stockholder Approval Approval, and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of Special Committee, at a meeting duly called and held, unanimously (i) determined that this Agreement, the Company has determined (x) that Merger and the other transactions contemplated by this Agreement are fair to to, and in the best interest interests of, the stockholders of the Company (other than Parent and its stockholders affiliates) and (yii) recommended to recommend that such stockholders vote in favor the Board of Directors of the approval Company that it approve and adoption of declare advisable this Agreement and the other transactions contemplated by this Agreement, including the Merger. The Board of Directors of the Company, at a meeting duly called and held, unanimously by those present, (i) determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are fair to, and in the best interests of, the stockholders of the Company, (ii) approved this Agreement, the Merger and the other transactions contemplated by this Agreement, (iii) declared this Agreement advisable, and (iv) resolved to recommend that the Company's stockholders approve and adopt this Agreement and the transactions contemplated hereby (the "Recommendation"). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid due execution and binding agreement of the other parties heretodelivery by Parent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 1933, as amended 0000 (the “Securities Act”xxx "Xxxxxxxx Xxx"), (iii) the Exchange Act, (ivxxx) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 0000 (the “HSR Act”xxx "XXX Xxx"), (vxx) any applicable non-United States competitionthe Israeli Restrictive Trade Practices Act, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended 1988 (the “ECMR”), "RTPA") and (viv) the approvals set forth on Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, the "Company Approvals"), and (vii) subject to the rules and regulations accuracy of the New York Stock Exchange (the “NYSE”) (the consents representations and approvals referenced warranties of Parent and Merger Sub in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Section 4.9, no authorization, consent or approval of, or filing with, any United States supranational, national, state or foreign government or any administrative agency, commission or stock exchange, exercising any regulatory or other governmental or regulatory agencyquasi-governmental authority, commissionincluding the NASDAQ Global Market, courtthe New York Stock Exchange, bodythe Tel Aviv Stock Exchange ("TASE"), entity or authority the Office of the Chief Scientist of the Israeli Ministry of Trade & Industry (each"OCS"), and the Investment Center of the Israeli Ministry of Trade & Industry (the "Investment Center"), the Israeli Tax Authority (each of the foregoing, a “"Governmental Entity”") is necessary for required to be obtained or made by the Company in connection with the execution, delivery and performance by the Company of this Agreement or the consummation by the Company of the Merger and other transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a Material Adverse Effect on whole, or to prevent or materially delay or materially impair the Companyability of the Company to consummate the Merger and the other transactions contemplated by this Agreement.
(c) The execution execution, delivery and delivery by the Company performance of this Agreement does notby the Company, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby hereby, including the Merger, does not and compliance with the provisions hereof will not (i) contravene or conflict with, or result in any violation ofviolation, breach or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a "Lien"), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers', warehousemen's, mechanics', materialmen's, repairmen's or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet or (D) which is a negative pledge covenant incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company (each of the foregoing, a "Permitted Lien"), upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect.
(d) The Company has received the Companywaivers and consents attached to Section 3.3(d) of the Company Disclosure Schedule (the "Debt Consents"). The Debt Consents and the Subject Arrangements (as defined in the Debt Consents) are in full force and effect and have not been withdrawn or terminated or otherwise amended or modified in any material respect without the prior written consent of Parent (provided that the Company may, without such consent, refinance, amend or modify any Subject Arrangement that matures prior to Closing in a manner consistent with the condition set forth in Section 6.3(c)(i)) and neither the Company nor any of its Subsidiaries is in default or material breach (and would not be in default or material breach with or without the lapse of time or both) of any of the terms or conditions set forth in the Debt Consents or the Subject Arrangements.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt adoption of this Agreement by holders of a majority of the outstanding shares of Company Common Stock entitled to vote thereon (the “Company Stockholder Approval (as defined in Section 3.20 of this AgreementApproval”), to consummate the transactions contemplated hereby, including the Merger. The execution execution, delivery and delivery performance by the Company of this Agreement and the consummation of the transactions contemplated hereby hereby, including the Merger, have been duly and validly authorized by the Company Board of Directors of the Company and, except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company or vote of the Company stockholders are necessary to authorize the consummation of the transactions contemplated hereby, including the Merger. The Company Board of Directors of has unanimously, subject to Section 5.3, (i) resolved to recommend that the Company has determined (x) that the transactions contemplated by stockholders adopt this Agreement (the “Company Recommendation”), (ii) determined that this Agreement and the Merger are fair to and in the best interest interests of the Company stockholders, (iii) approved this Agreement and its stockholders the Merger and (yiv) to recommend directed that such stockholders vote in favor of the approval and adoption of this Agreement and be submitted to a vote at a meeting of the MergerCompany stockholders. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the legal, valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the legal, valid and binding agreement of the other parties hereto, constitutes a valid Company and binding agreement of the Company, is enforceable against the Company in accordance with its terms (terms, except to the extent that enforceability as such enforcement may be limited by subject to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, reorganization moratorium or other similar Laws affecting the enforcement of creditors’ creditor’s rights generally or by principles governing and the availability of equitable remediesrelief and any implied covenant of good faith and fair dealing (the “Enforceability Exceptions”).
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificate of Merger with the DLLCASecretary of State of the State of Delaware, (ii) the filing of the Form S-4 and the Proxy Statement/Prospectus with the SEC and any amendments or supplements thereto and declaration of effectiveness of the Form S-4, (iii) the U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder (the “Exchange Act”), (iv) the U.S. Securities Act of 1933, as amended amended, and the rules promulgated thereunder (the “Securities Act”), (iiiv) applicable state securities, takeover and “blue sky” laws, (vi) the Exchange Actrules and regulations of Nasdaq Global Select Market, (ivvii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), (v) and any applicable non-United States competition, international antitrust requirements and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viviii) the approvals set forth on in Section 3.3(b) of the Company Disclosure Schedule, and Schedule (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses subclauses (i) through (vii) above being collectively referred to herein as viii), the “Company Approvals”), no authorization, consent waiver, consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this Agreement, except for other than such authorizations, waivers, consents, approvals orders, licenses, permits, approvals, registrations, declarations, notices and filings the failure of which to obtain or filings thatmake, if not obtained or madeas applicable, would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, and (assuming the Company Stockholder Approval and the Company Approvals are obtained) the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) except as set forth in this Agreement, result in any loss, or suspension, limitation or impairment of any right of the Company or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, concession, franchise, or right or license binding upon the Company or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) other than Permitted Liens, in each case, upon any of the properties or assets of the Company or any of its Subsidiaries, except for such losses, suspensions, limitations, impairments, conflicts, violations, defaults, terminations, cancellation, accelerations, or Liens as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Company’s Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Company Subsidiary Organizational Documents or (iii) conflict with or violate any applicable Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and except as would not reasonably be expected to haveexpected, individually or in the aggregate, to have a Material Adverse Effect on the Company.
Appears in 1 contract
Samples: Merger Agreement (Conversant, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The No vote of holders of capital stock of Parent is necessary, pursuant to applicable Law, the articles of incorporation or bylaws of Parent, pursuant to Nasdaq rules or otherwise, to approve this Agreement, the issuance of any Parent Common Stock to be exchanged for Company Common Stock pursuant to Article I or Article III or the Transactions. Each of Parent, Purchaser and Merger Sub 2 has requisite the required corporate or comparable power and authority to enter into execute and deliver this Agreement andand to consummate the Transactions, including the Offer and the Mergers, subject only to receipt the adoption of this Agreement by Parent as the Company Stockholder Approval (sole stockholder of Purchaser and as defined in Section 3.20 the sole member of Merger Sub 2, both of which will occur immediately following the execution of this Agreement). The execution, to consummate delivery and performance of this Agreement by Parent and the transactions contemplated herebyMerger Subs and the consummation by each of them of the Transactions, including the Merger. The Offer and the Mergers, have been duly and validly authorized by all necessary corporate or comparable action on the part of Parent and the Merger Subs, and, except as set forth in Section 5.3(b), no other corporate or comparable action on the part of any of Parent, Purchaser or Merger Sub 2 is necessary to authorize the execution and delivery by Parent and the Merger Subs of this Agreement and the consummation of the transactions Transactions, including the Offer and the Mergers. The board of directors of Parent has approved this Agreement and the Transactions contemplated hereby have been duly hereby, including the Offer and validly authorized the Mergers, and the performance by the Board it of Directors its covenants and agreements contained herein. The board of directors or manager, as applicable, of each of the Company and, except for the Merger Subs has unanimously (i) Company Stockholder Approval determined that the terms of the Transactions, including the Offer and the Mergers are fair to, and in the best interests of, such Merger Sub and its stockholders, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and it is in the best interest of the Company such Merger Sub to enter into, and its stockholders declared advisable, this Agreement and (yiii) to recommend that approved the execution and delivery, by such stockholders vote in favor of the approval and adoption Merger Sub, of this Agreement (including the agreement of merger, as such term is used in Section 251 of the DGCL), the performance by the Merger Subs of their covenants and agreements contained herein and the Mergerconsummation of the Transactions, including the Offer and the Mergers, upon the terms and subject to the conditions contained herein. This Agreement has been duly and validly executed and delivered by Parent and the Company Merger Subs and, assuming this Agreement constitutes a valid and binding agreement of the other parties heretolegal, constitutes a valid and binding agreement of the Company, this Agreement constitutes the legal, valid and binding agreement of Parent and the Merger Subs and is enforceable against Parent and the Company Merger Subs in accordance with its terms (terms, except as such enforcement may be subject to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)Enforceability Exceptions.
(b) Other than in connection with or in compliance with (i) the provisions filing of the DGCL and Certificates of Merger with the DLLCADelaware Secretary, (ii) the Securities Act filing of 1933the Offer Documents, as amended the Schedule 14D-9, the Forms S-4 (including the “Securities Act”)Offer Prospectus and Merger Proxy Statement/Prospectus) with the SEC and any amendments or supplements thereto and declaration of effectiveness of the applicable Form S-4, (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Securities Act”), (v) any applicable non-United States competitionstate securities, antitrust takeover and investment “blue sky” laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange Nasdaq, (vii) the “NYSE”HSR Act and any other requisite clearances or approvals under any other applicable Antitrust Laws, (viii) the approvals set forth in Section 5.3(b) of the Parent Disclosure Schedule (the consents and approvals referenced in clauses items (i) through (viiviii) above being collectively referred to herein as collectively, the “Company Parent Approvals”), and (ix) such other authorizations, consents, orders, licenses, permits, approvals, declarations, notice filings, the failure of which TABLE OF CONTENTS to be obtained would not have a Parent Material Adverse Effect or materially impede, interfere with, hinder or delay the consummation of any of the Transactions, no authorization, consent consent, order, license, permit or approval of, or registration, declaration, notice or filing with, any United States or foreign governmental or regulatory agencyGovernmental Entity is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by Parent or the Company Merger Subs of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyTransactions.
(c) The execution and delivery by Parent and the Company Merger Subs of this Agreement does not, and (assuming the Parent Approvals are obtained) the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not (i) result in any loss or suspension, limitation or impairment of any right of Parent or any of its Subsidiaries to own or use any assets required for the conduct of their business or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation cancellation, first offer, first refusal, modification or acceleration of any obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, concession, franchise, right or license binding upon the Company Parent or any of the Company’s its Subsidiaries or by which or to which any of their respective properties, rights or assets are bound or subject, or result in the creation of any Lien Liens other than Permitted Liens, in each case, upon any of the properties or assets of the Company Parent or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Parent Organizational Documents”) Documents or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, Organizational Documents of any Subsidiary of the Company’s SubsidiariesParent, or (iii) conflict with or violate any applicable Laws applicable to the Company which Parent or any of the Company’s its Subsidiaries or any of their respective properties or assetsis subject, other thanexcept, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect on or permit or materially impede, interfere with, hinder or delay the Companyconsummations of the Transactions.
(d) Prior to the Acceptance Time, or, if an Offer Termination has occurred, prior to the First Effective Time, Parent will have taken all necessary action to permit it to issue the number of Parent Common Stock required to be issued in connection with the Purchaser’s obligations pursuant to Article I and Parent’s obligations pursuant to Article III. Such Parent Common Stock, when issued, will be validly issued, fully paid and nonassessable, and no stockholder of Parent will have any preemptive right of subscription or purchase in respect thereof. Such Parent Common Stock, when issued, and the offering thereof, will be registered under the Securities Act and the Exchange Act and registered or exempt from registration under any applicable state securities or “blue sky” Laws.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Alexion Pharmaceuticals Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), and to consummate the transactions contemplated hereby, including the Merger. The execution execution, delivery and delivery performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board board of Directors directors of the Company and, except for the (i) Company Stockholder Merger Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, and assuming the accuracy of the representations and warranties contained in Section 4.06(c), no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board Special Committee, at a meeting duly called and held, has by unanimous vote of Directors of the Company has determined (x) that all its members approved and declared this Agreement and the transactions contemplated by this Agreement hereby, including the Merger, advisable and determined that such transactions are fair to to, and in the best interest interests of the Company and its stockholders stockholders. Subject to Section 5.02(d) and Section 5.03, the board of directors of the Company, based on the unanimous recommendation of the Special Committee has unanimously, by resolutions duly adopted at a meeting duly called and held, (x) duly and validly approved and declared advisable this Agreement and the transactions contemplated hereby, (y) determined that the terms of this Agreement are fair to, and in the best interests of, the Company and its stockholders other than the Contributing Stockholders and (z) resolved to recommend in accordance with applicable Law that such the Company’s stockholders vote in favor of the approval and adoption of this Agreement and (the Merger“Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability at Law) and any implied covenant of equitable remedies)good faith and fair dealing.
(b) Other than in connection with or in compliance with The execution, delivery and performance of this Agreement by the Company and the other documents contemplated hereby, and the consummation by the Company of the transactions contemplated hereby, will not require the consent of any Governmental Entity, except for:
(i) the provisions applicable requirements, if any, of the DGCL and Securities Exchange Act of 1934, as amended (the DLLCA“Exchange Act”), (ii) the Securities Act of 1933, as amended (the “Securities Act”), state securities or “blue sky” laws and state takeover laws;
(iiiii) the Exchange Act, (iv) pre-merger notification requirements of the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), ) and the applicable Laws relating to antitrust matters or regulating competition of jurisdictions other than the United States;
(viii) any applicable non-United States competition, antitrust filings with and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 approvals of the European CommunityFederal Communications Commission (the “FCC”) pursuant to the Communications Act of 1934, as amended (the “ECMRCommunications Act”), ) and any regulations promulgated thereunder; or
(viiv) the approvals set forth on Section 3.3(b) filing of the Company Disclosure Schedule, and (vii) the rules and regulations Certificate of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein Merger as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation required by the Company of the transactions contemplated by this AgreementDGCL, except for and
(v) such authorizations, consents, approvals approvals, orders, filings or filings notices that, if not obtained or made, would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
(c) The execution execution, delivery and delivery performance by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not (i) result in any violation of, or default (with or without notice or lapse of time):
(i) contravene, conflict with or both) under, result in a violation or give rise to a right breach of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s Subsidiaries terms or result in the creation requirements of any Lien upon any provision of the properties or assets Governing Documents of the Company or any of the Company’s its Subsidiaries, ;
(ii) assuming receipt of the consents, approvals and authorizations specified in Section 3.04(b) and compliance with applicable antitrust Laws, contravene, conflict with or result in any a violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, breach of any of the Company’s Subsidiariesterms or requirements, or (iii) conflict with give any Governmental Entity or violate other Person the right to exercise any Laws applicable remedy or obtain any relief under, any Law or Order to which the Company or any of its Subsidiaries may be subject;
(iii) assuming receipt of the Company’s Subsidiaries consents, approvals and authorizations specified in Section 3.04(b), contravene, conflict with or result in a violation or breach of any of the terms or requirements of, or give any Governmental Entity the right to revoke, withdraw, suspend, cancel, terminate or modify, any Commission Authorization or any material Governmental Authorization that is not a Commission Authorization;
(iv) result in a breach of, or violate, or be in conflict with, or constitute a default under, or permit the termination of, or require any consent or authorization under, or cause or permit acceleration of their respective properties the maturity or assetsperformance of or payment under any Material Contract; or
(v) result in the imposition or creation of any material Lien upon or with respect to any of the Assets, other than, except in the case of clauses (i) and ii), (iii), (iv) and (v) any such contravention, conflict violation, conflict, default, right, loss breach or Lien acceleration that has not had, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Cumulus Media Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Merger. The execution Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, at a duly called and held meeting, has unanimously (with Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx abstaining) adopted resolutions (i) determining that the terms of the Merger and the other transactions contemplated by this Agreement are fair and in the best interests of the Company and its stockholders, and declaring it advisable, to enter into this Agreement, (ii) approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly hereby, including the Merger, and validly authorized by (iii) resolving to recommend that the Board of Directors stockholders of the Company and, except approve the adoption of this Agreement (the “Recommendation”) and directing that such matter be submitted for consideration of the stockholders of the Company at the Company Meeting. Except for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection The execution, delivery and performance by the Company of this Agreement and the consummation of the Merger by the Company do not and will not require any consent, approval, authorization or permit of, action by, filing with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred notification to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”), other than (i) is necessary for the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL, (ii) compliance with the applicable requirements of the HSR Act, (iii) compliance with the applicable requirements of the Exchange Act, including the filing of the Proxy Statement, (iv) compliance with the rules and regulations of the New York Stock Exchange, (v) compliance with any applicable foreign or state securities or blue sky laws, and (vi) the other consents and/or notices set forth on Section 3.3(b) of the Company Disclosure Letter (collectively, clauses (i) through (vi), the “Specified Approvals”), and other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not (A) individually or in the aggregate, have a Company Material Adverse Effect or (B) prevent or materially delay the consummation of the Merger.
(c) Assuming compliance with the matters referenced in Section 3.3(b), receipt of the Specified Approvals and the receipt of the Company Stockholder Approval, the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The execution and delivery by the Company of this Agreement does not, Merger and the consummation of the other transactions contemplated hereby do not and compliance with the provisions hereof will not (i) contravene or conflict with the organizational or governing documents of the Company or any of its Subsidiaries, (ii) contravene or conflict with or constitute a violation of any provision of any Law binding upon or applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (iii) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Elkcorp)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreementhereinafter defined), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company Company, and, except for the (i) the Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The As of the date hereof, the Board of Directors of the Company has (A) determined (x) that this Agreement and the transactions contemplated by this Agreement hereby are fair to and in the best interest interests of the Company Company’s stockholders, (B) approved and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of adopted this Agreement and the Mergertransactions contemplated hereby and (C) unanimously resolved to recommend that the Company’s stockholders adopt this Agreement and the transactions contemplated hereby (the “Recommendation”). This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or by principles governing the availability of equitable remediesat Law).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), (iv) any antitrust, competition or similar laws of any foreign jurisdiction, (v) any applicable non-United States competition, antitrust the filing with the Securities and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended Exchange Commission (the “ECMRSEC”) of a proxy statement in definitive form relating to the meeting of the Company’s stockholders to be held in connection with this Agreement and the transactions contemplated by this Agreement (the “Proxy Statement”), (vi) such filings and approvals as are required to be made or obtained under the money transmitter or money services business Laws of various states, and (vii) the approvals set forth on Section 3.3(b3.4(b) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
(c) The execution execution, delivery and delivery performance by the Company of this Agreement does notAgreement, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company do not and will not not, (i) result in any violation of, breach or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a any modification under or right of termination, cancellation cancellation, penalty or acceleration of any obligation or remedy, or to the loss, alteration loss of any benefit or impairment of a material benefit any additional payment under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right right, license, arrangement or license binding upon other obligation to which the Company or any of the Company’s its Subsidiaries is a party or to which their respective properties and assets are bound, or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) contravene, conflict with or result in any violation of any provision of the certificate of incorporation Company Charter or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or byBy-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, or (iii) conflict with or violate any Laws applicable to the Company or any document of the Company’s Subsidiaries or (iii) assuming that the consents and approvals referred to in Section 3.4(b) are duly obtained, contravene, conflict with or result in any violation of their respective properties or assetsany applicable Law, other than, in the case of clauses (i), (ii) (to the extent relating to Subsidiaries) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Fiserv Inc)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement andand to consummate the transactions contemplated hereby subject, subject in the case of the consummation of the Merger, to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement), to consummate the transactions contemplated hereby, including the MergerApproval. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board of Directors (after the recommendation of the Company Special Committee) and, except with respect to the Merger for the (i) Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareApproval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid has been duly executed and binding agreement of the other parties heretodelivered by Parent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or other Laws affecting the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally or by principles governing the availability and (ii) equitable remedies of specific performance and injunctive and other forms of equitable remediesrelief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought (the “Bankruptcy and Equity Exception”).
(b) The Company Board has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable and fair to, and in the best interests of, the Company and its stockholders, (ii) adopted and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (iii) directed that this Agreement be submitted to the Company’s stockholders for their approval and (iv) resolved to recommend that the Company’s stockholders adopt this Agreement (collectively, the “Recommendation”).
(c) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCA, (ii) the Securities Exchange Act of 19331934, as amended (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) or any applicable non-United States competitionstate securities or “blue sky” Laws (collectively, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 3.9, no authorization, consent or approval of, or filing with, any United States or foreign federal, state or local governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(cd) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 2.3(c) or set forth on Section 2.3(d) of the Company Disclosure Schedule, the consummation of the transactions contemplated hereby and compliance by the Company with the provisions hereof of this Agreement will not (i) result in any material violation of, or material default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, sublease or similar arrangement, agreement, contract, instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or to which any of them is a party or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due or being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company or notes thereto or securing liabilities reflected on such balance sheet) or (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company (each of the foregoing, a “Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) Charter or the certificate of incorporation Company Bylaws or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, Subsidiary Government Document or (iii) conflict with or violate violate, in any material respect, any applicable Laws applicable that are material to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyits Subsidiaries.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into and deliver this Agreement Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Shareholder Approval (as defined in Section 3.20 of this Agreementhereinafter defined), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement Agreement, the performance by the Company of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) the Company Stockholder Shareholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of DelawareTexas, no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or the Merger or to consummate the transactions contemplated hereby. The Board has determined that it is in the best interests of the Company and its shareholders to enter into this Agreement and has resolved to recommend that this Agreement, the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby. The , including the Merger, be approved by the holders of Company Common Stock at the Shareholders’ Meeting (including the Board’s recommendation, the “Recommendation”); provided that a withdrawal or modification after the date hereof by the Board of Directors the Recommendation in accordance with Section 5.3 shall not be deemed a breach of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption foregoing portion of this Agreement and the Mergersentence. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except as such enforceability (except to the extent that enforceability i) may be limited by applicable bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and other similar Laws of general application affecting or other Laws affecting relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or by principles governing in equity, and any implied covenant of good faith and fair dealing (the availability of equitable remedies“Bankruptcy and Equity Exception”).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCATBOC, (ii) the Securities Exchange Act of 19331934, as amended amended, and the rules and regulations promulgated thereunder (the “Securities Exchange Act”) or rules of the NASDAQ Capital Market (“NASDAQ”), and (iii) the Exchange Actapplicable state, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, local and provincial licensing statutes and regulations as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (vi) the approvals set forth on listed in Section 3.3(b3.4(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no material authorization, consent consent, permit or approval of, or filing with, or notification to any United States federal, state, local or foreign governmental or regulatory agency, commission, court, body, entity or authority authority, or any agency or instrumentality thereof (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder and the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The Except as set forth in Section 3.4(c) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement does not, and the performance by the Company of its obligations hereunder, the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not not, (i) result in any material breach or violation of, or material default (with or without notice or lapse of time, or both) under, require consent, notification or approval under, or give rise to a right of termination, cancellation or acceleration of any obligation material obligation, payment for any material consent or similar fee, or to the loss, alteration or impairment loss of a any material benefit under under, any material loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, Contract or instrument, permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or any of their respective assets or properties or result in the creation of any material Lien upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, (ii) conflict with or result in any violation of any provision of the certificate articles of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) assuming that the notifications, consents and approvals referred to in Section 3.4(b) of the Company Disclosure Schedule are duly made or obtained, as the case may be, conflict with or violate in any material respect any Laws applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company’s Subsidiaries Company or any of their respective properties its Subsidiaries is subject or assets, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companybound.
Appears in 1 contract
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has the requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Shareholder Approval (as defined in Section 3.20 of this Agreementif required by applicable Law to consummate the Merger), to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company and, except for the (i) the Company Stockholder Shareholder Approval (if required by applicable Law to consummate the Merger) and (ii) the filing of the Certificate Articles of Merger with the Secretary of State of the State of DelawareFlorida, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The Board of Directors of the Company has determined (x) that the transactions contemplated by this Agreement are fair to and in the best interest of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption of this Agreement and the Merger. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a valid has been duly executed by Parent and binding agreement of the other parties heretoMerger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except terms, subject to the extent that enforceability may be limited by applicable effects of bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting the enforcement of creditors’ rights generally generally, general equitable principles (whether considered in a proceeding in equity or by principles governing the availability of equitable remediesat Law).
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCAFBCA, or any applicable Florida anti-takeover or investor protection statute, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iviii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended amended, and the rules and regulations promulgated thereunder (the “HSR Act”), ) and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viiv) the approvals set forth on Section 3.3(b4.4(b) of the Company Disclosure ScheduleLetter (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreementhereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to havenot, individually or in the aggregate, be material to the Company and its Subsidiaries taken as a Material Adverse Effect on the Companywhole.
(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof by the Company will not not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss, alteration or impairment loss of a material any benefit under any material loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contractContract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of the Company’s its Subsidiaries or result in the creation of any Lien liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of the Company’s its Subsidiaries, ,
(ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate articles of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, document of the Company or any of the Company’s Subsidiaries, its Significant Subsidiaries or (iii) assuming that the consents and approvals referred to in Section 4.4(b) are duly obtained, conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, right, loss or Lien that has not had, and as would not reasonably be expected to havenot, individually or in the aggregate, have or be reasonably expected to have a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Bankrate, Inc.)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject (in the case of the Merger) to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to perform its obligations hereunder and to consummate the transactions contemplated hereby, including the MergerTransactions. The execution execution, delivery and delivery performance by the Company of this Agreement and the consummation of the transactions contemplated hereby Transactions have been duly and validly authorized by the Company Board of Directors and (in the case of the Company andMerger, except for the (i) receipt of the Company Stockholder Approval and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, DSOS) no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated herebyTransactions. The On or prior to the date hereof, the Company Board of Directors of the Company has determined (xA) resolved that the transactions contemplated by this Agreement and the Transactions, including the Merger, are advisable and fair to to, and in the best interest of interests of, the Company and its stockholders and the Company stockholders, (yB) to recommend that such stockholders vote in favor of adopted resolutions approving the approval and adoption execution of this Agreement and the consummation of the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, in accordance with the requirements of the DGCL and (C) adopted a resolution to make, subject to Section 5.3, the Company Board Recommendation. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (except to the extent that enforceability 1) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization examinership, fraudulent transfer, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting or relating to the enforcement of creditors’ rights generally or by principles governing the availability and (2) equitable remedies of specific performance and injunctive and other forms of equitable remedies)relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Act of 1933, as amended (the “Securities Act”), (iii) the Exchange Act, (iv) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 requirements of the European Community, as amended (the “ECMR”)other Antitrust Laws, (vi) the approvals requirement to file the Certificate of Merger with the DSOS, (vii) any applicable requirements of the NYSE, (viii) Irish Prospectus Law and (ix) the matters set forth on in Section 3.3(b) of the Company Disclosure Schedule, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”)Letter, no authorization, consent or approval of, or filing with, any United States or foreign governmental or regulatory agencyRelevant Authority is necessary, commissionunder applicable Law, court, body, entity or authority (each, a “Governmental Entity”) is necessary for the consummation by the Company of the transactions contemplated by this AgreementTransactions, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does do not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby Transactions and compliance with the provisions hereof will not not, (i) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material Contract, loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, franchise right or license binding upon the Company or any of the Company’s Company Subsidiaries or result in the creation of any Lien Liens or any other material obligations, losses or grants of rights upon any of the properties properties, rights or assets of the Company or any of the Company’s SubsidiariesCompany Subsidiary, other than Company Permitted Liens, (ii) conflict with or result in any violation of any provision of the certificate of incorporation Company Governing Documents or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws or other equivalent organizational documents, in each case, as amended, of any of the Company’s Subsidiaries, organizational documents of any Company Subsidiary or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Company Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (i), (ii) (with respect to Company Subsidiaries that are not Significant Subsidiaries only) and (iii), any such violation, breach, conflict, default, termination, modification, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
Appears in 1 contract
Samples: Merger Agreement (Allergan PLC)
Corporate Authority Relative to this Agreement; No Violation. (a) The Company has requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Stockholder Approval (as defined in Section 3.20 of this Agreement)Approval, to consummate the transactions contemplated hereby, including the Mergerby this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by this Agreement have been duly and validly authorized by the Board of Directors of and, to the Company extent required, by the Special Committee (acting unanimously) and, except for the (i) the Company Stockholder Approval Approval, and (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or the consummation of the transactions contemplated herebyby this Agreement. The Special Committee has unanimously determined and resolved, and the Board of Directors of has determined and resolved (i) that the Merger is fair to, and in the best interests of, the Company has determined and its stockholders, (xii) to propose this Agreement for adoption by the Company’s stockholders and to declare the advisability of this Agreement and (iii) to recommend that the Company’s stockholders approve this Agreement and the transactions contemplated by this Agreement are fair to (collectively, the “Recommendation”), all of which determinations and resolutions have not been rescinded, modified or withdrawn in the best interest any way as of the Company and its stockholders and (y) to recommend that such stockholders vote in favor of the approval and adoption date of this Agreement and the MergerAgreement. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a the valid and binding agreement of the other parties heretoParent and Merger Sub, constitutes a the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies)terms.
(b) Other than in connection with or in compliance with (i) the provisions of the DGCL and the DLLCADGCL, (ii) the Securities Exchange Act of 1933, as amended 1934 (the “Securities Exchange Act”), (iii) the Exchange Act, (iv) the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended 1976 (the “HSR Act”), ) and (v) any applicable non-United States competition, antitrust and investment laws, including any required notifications and filings under Council Regulation (EC) 139/2004 of the European Community, as amended (the “ECMR”), (viiv) the approvals set forth on Section 3.3(b) of the Company Disclosure ScheduleSchedule (collectively, and (vii) the rules and regulations of the New York Stock Exchange (the “NYSE”) (the consents and approvals referenced in clauses (i) through (vii) above being collectively referred to herein as the “Company Approvals”), and subject to the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.9, no authorization, consent consent, permit, action or approval of, or filing with, or notification to, any United States federal, state or local or foreign governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) is necessary necessary, under applicable Law, for the consummation by the Company of the transactions contemplated by this Agreement, except for such authorizations, consents, approvals permits, actions, approvals, notifications or filings that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect.
(c) The execution and delivery by the Company of this Agreement does not, and and, except as described in Section 3.3(b), the consummation of the transactions contemplated hereby by this Agreement and compliance with the provisions hereof of this Agreement will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, amendment, cancellation or acceleration of any material obligation or to the loss, alteration or impairment loss of a material benefit under any material loan, guarantee of indebtedness Indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right franchise or license agreement (collectively, “Contracts”) binding upon the Company or any of the Company’s Subsidiaries its Subsidiaries, or to which any of them is a party or any of their respective properties are bound, or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”), other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business, (C) which is disclosed on the most recent consolidated balance sheet of the Company (or notes thereto or securing liabilities reflected on such balance sheet) or (D) which was incurred in the ordinary course of business since the date of the most recent consolidated balance sheet of the Company (each of the foregoing, a “Permitted Lien”), upon any of the properties or assets of the Company or any of the Company’s Subsidiariesits Subsidiaries or any Company Joint Venture, (ii) conflict with or result in any violation of any provision of the certificate of incorporation or by-laws of the Company, as amended (the “Company Organizational Documents”) or the certificate of incorporation or by-laws bylaws or other equivalent organizational documentsdocument, in each case, case as amended, of the Company or any of the Company’s Subsidiaries, its Subsidiaries or (iii) conflict with or violate any Laws applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assetsLaws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth a list of any consent, approval, authorization or permit of, action by, registration, declaration or filing with or notification to any person under any (i) Company Material Contract or (ii) material lease, material sublease, material assignment of lease or material occupancy agreement (each a “Material Lease”) to which the Company, any of its Subsidiaries or any Company Joint Venture is a party which is required in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, other than those the failure of which to obtain would not have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 1 contract
