Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operates.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (V F Corp), Agreement and Plan of Merger (Timberland Co)
Organization and Qualification; Subsidiaries. The Each of the Company and each subsidiary of its subsidiaries the Company (each, a "Subsidiary" and collectively, the "Subsidiaries") is a corporation duly organizedincorporated, validly existing and in good standing (with respect to jurisdictions that which recognize the concept of good standingsuch concept) under the laws of the jurisdiction of its organization incorporation and has all the requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such the failure to be so organizedincorporated, validly existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (as defined below). The Each of the Company and each of its subsidiaries Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standingstanding (with respect to jurisdictions which recognize such concept), in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. “The term "Company Material Adverse Effect” " means any change in or effect on the Company and the Subsidiaries that is or is reasonably likely to be materially adverse to the business, results of operations or financial condition of the Company and the Subsidiaries taken as a whole, or to prevent or materially delay the consummation of the Merger; provided that for all purposes of this Agreement the occurrence of any of the following shall be deemed not to have a Company Material Adverse Effect: any change, effect, event, circumstance, event or occurrence or state of facts that is materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in from the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance execution of this Agreement or the consummation of the transactions contemplated herebyhereby or the announcement thereof except as expressly provided for otherwise in this Agreement, so long as, any diminution in the case amount of clauses insurance or reinsurance business written (iwhether resulting from non-renewal by the other party or otherwise), (ii)any termination or amendment of existing insurance or reinsurance programs written by any Subsidiary, (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies any adverse development in the industry claims reserves or in which the Company operates.reserves for unrecoverable
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tig Holdings Inc), Agreement (Fairfax Financial Holdings LTD/ Can)
Organization and Qualification; Subsidiaries. The Company Parent Disclosure Schedule sets forth the jurisdiction of incorporation of Parent and each subsidiary of its subsidiaries Parent (the "Parent Subsidiaries"). Each of Parent and the Parent Subsidiaries is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the such jurisdiction of its organization and has all requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such the failure to obtain such governmental approvals has not had, and could not reasonably be so organized, existing or in good standing or expected to have such power or authority would nothave, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect (as defined below). The Company Each of Parent and each of its subsidiaries the Parent Subsidiaries is duly qualified or licensed as a foreign corporation or organization to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing would notthat have not had, and could not reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. “Other than the Parent Subsidiaries, there are no corporations, partnerships, joint ventures, associations or other similar entities in which Parent owns, of record or beneficially, any direct or indirect equity or other similar interest or any right (contingent or otherwise) to acquire the same. The term "Parent Material Adverse Effect” " means any change, effect, event, circumstance, occurrence changes in or state effects on the business of facts Parent that is materially adverse to (a) the business, condition (financial conditionor otherwise), assets (tangible or intangible), liabilities (including contingent liabilities), or results of operationsoperations or prospects of Parent, assets except for any such changes or liabilities of the Company and its subsidiaries taken as a whole effects principally resulting from or (b) the Company’s ability to consummate the Merger; provided, however, that, principally arising in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: connection with (i) economic, financial market, or geopolitical conditions in generalany changes affecting the wireless telecommunications equipment industry that do not have a disproportionate impact on Parent, (ii) any changes in general changes or developments in the industries in which the Company and its subsidiaries operateeconomic conditions that do not disproportionately impact Parent, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by in the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders trading price of the Company Parent Common Stock or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on taking of any action expressly required by the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operatesterms of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Conductus Inc), Agreement and Plan of Merger (Superconductor Technologies Inc)
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries Subsidiaries (as hereinafter defined) is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the its state or jurisdiction of its organization incorporation and has all requisite corporate or similar power and corporate authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, conducted and is in good standing, standing as a foreign corporation in each jurisdiction where the character of the properties owned, leased or operated operated, or the business conducted, by it or the nature of its activities makes require such qualification or licensing necessary, other than in such jurisdictions and where any such failure to be so qualified or licensed or in good standing or to so qualify would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect on the Company. “The term "Material Adverse Effect” Effect on the Company," as used in this Agreement, means any change, effect, event, circumstanceoccurrence, occurrence change or state of facts that that, or aggregated with other effects, events, occurrences, changes or states of facts, is, or is reasonably likely to be, materially adverse to (ai) the assets, liabilities, business, financial conditionproperty, results of operations, assets condition as a whole (financial or liabilities otherwise) of the Company and its subsidiaries Subsidiaries taken as a whole whole, or (bii) the Company’s ability of the Company and its Subsidiaries to consummate perform in all material respects their obligations under this Agreement. The Company has heretofore made available to ICS a complete and correct copy of its Articles of Incorporation, as amended, and By-Laws. Set forth on Section 3.1 of the Merger; providedDisclosure Schedule is a list of every corporation, howeverlimited liability company, thatpartnership or other business organization or entity of which the Company owns either directly or through its Subsidiaries, (a) more than 50% of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests therein, or (iii) the capital or profit interests therein, in the case of a partnership; or (b) or otherwise has the immediately preceding clause (a), none power to vote or direct the voting of sufficient securities to elect a majority of the following, board of directors or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes similar governing body of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effectentity (the "Subsidiaries"), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operates.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Integrated Circuit Systems Inc), Agreement and Plan of Merger (Microclock Inc)
Organization and Qualification; Subsidiaries. The Company and each subsidiary of its subsidiaries the Company (a "Subsidiary") is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws Laws of the jurisdiction of its organization incorporation and has all the requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure failure(s) to be so qualified or licensed or in good standing that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (as hereinafter defined). The term "Company Material Adverse Effect. “Material Adverse Effect” " means any change, effect, event, circumstance, occurrence change or state of facts effect that is or is reasonably likely to be materially adverse to (a) the business, financial condition, results of operations, assets operations or liabilities condition (financial or otherwise) of the Company and its subsidiaries the Subsidiaries, taken as a whole whole, or (b) otherwise materially and adversely affects the Company’s ability of the Company to consummate the Mergertransactions contemplated hereby; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, following shall be deemed in themselves, either alone or in combination, to constitute, and none of them the following shall be taken into account in determining whether there has been or could or would will be, a Company Material Adverse Effect: (ia) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes any change in the market price or trading volume of the Company Common Stock Company's stock after the date hereof; (but b) any adverse change, effect, event, occurrence, state of facts or development to the reasons extent attributable to the announcement or causes pendency of such changes may constitute the Merger (including any cancellation of or delays in customer orders, any reduction in sales, any disruption in supplier, distributor, partner or similar relationships or any loss of employees); (c) any adverse change, effect, event, occurrence, state of facts or development attributable to conditions affecting the industries as a Material Adverse Effect and may be taken into account whole in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by which the Company to meet any expected participates, the U.S. economy as a whole or projected financial or operating performance target, the foreign economies as well as any change by the Company a whole in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of locations where the Company or any of its nonSubsidiaries has material operations or sales; (d) any adverse change, effect, event, occurrence, state of facts or development arising from or relating to compliance with the terms of, or the taking of any action required by, this Agreement; or (e) any suit, claim, action or other proceeding brought by any shareholder, Governmental Authority or third-wholly-owned subsidiaries (whether on behalf party competitor of the Company or such subsidiaries Parent after the date hereof that (x) is brought or otherwise) arising out threatened against the Company or any of its Subsidiaries or any member of its Board of Directors in connection with the existence, announcement or performance respect of this Agreement or the transactions contemplated hereby, so long as, hereby or (y) in the case of clauses (i)a third-party competitor is brought or threatened against the Company or any of its Subsidiaries or any member of its Board of Directors and is reasonably likely to have been brought with the intended purpose or effect of preventing, (ii)enjoining, (iv) materially altering or delaying or otherwise interfering with the transactions contemplated by this Agreement. A true and (vii)complete list of all the Subsidiaries, together with the effect on jurisdiction of incorporation of each Subsidiary and the percentage of the outstanding capital stock of each Subsidiary owned by the Company and its subsidiaries, taken as a wholeeach other Subsidiary, is set forth on Schedule 3.01-1 of the Company Disclosure Schedule. A true and complete list of all the Subsidiaries, together with the jurisdiction of incorporation of each Subsidiary and the percentage of the outstanding capital stock of each Subsidiary owned by the Company and each other Subsidiary, is set forth on Schedule 3.01-1 of the Company Disclosure Schedule. Except as set forth on Schedule 3.01-1 of the Company Disclosure Schedule, the Company does not disproportionate directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for, any equity or similar interest in, any corporation, partnership, joint venture or other business association or entity and is not subject to that on other companies any obligation or requirement to provide funds or make any investment (in the industry form of a loan, capital contribution or otherwise) in which the Company operatesany such entity or any other person.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lecroy Corp), Agreement and Plan of Merger (Computer Access Technology Corp)
Organization and Qualification; Subsidiaries. The Each of -------------------------------------------- the Company and each of its subsidiaries Subsidiaries (defined below in this Section 4.1) is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation and has all the requisite corporate or similar power and authority and any necessary governmental authority to own, operate or lease and the properties that it purports to own, operate its properties or lease and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the its properties owned, operated or leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any except for such failure to be so qualified or licensed or in good standing which, when taken together with all other such failures, would not, individually or in the aggregate, reasonably be expected to not have a Material Adverse EffectEffect (as defined below in this Section 4.1). “The term "Subsidiary" ---------- means any corporation or other legal entity of which the Company or, if the context requires, the Surviving Corporation (either alone or through or together with any other Subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity. The term "Material Adverse Effect” " means any change, effect, event, circumstance, occurrence ----------------------- change in or state of facts that is materially adverse to (a) effect on the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders business of the Company or any of its non-wholly-owned subsidiaries the Subsidiaries that is reasonably likely to be materially adverse to the business, operations, properties (whether on behalf including intangible properties), condition (financial or otherwise), assets, liabilities or regulatory status of the Company or such subsidiaries or otherwise) arising out of or in connection with and the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, Subsidiaries taken as a whole. A true and complete list of all the Subsidiaries, together with the jurisdiction of incorporation of each Subsidiary and the percentage of each Subsidiary's outstanding capital stock owned by the Company or another Subsidiary, is not disproportionate to that on other companies set forth in Section 4.1 of the industry in which disclosure memorandum separately delivered by the Company operates.to the Parent in connection herewith (the "Company Disclosure Schedule"). ---------------------------
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mhi Group Inc), Agreement and Plan of Merger (Mhi Group Inc)
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each subsidiary set forth in Section 3.1 of its subsidiaries the Company Disclosure Schedule (each, a “Material Subsidiary”) is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure to be so qualified or licensed or in good standing which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” ”“ means any change, circumstance, effect, event, circumstance, event or occurrence or state of facts that is would be materially adverse to (a) the assets, liabilities, business, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries taken as a whole whole, other than any change or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or effect resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: from (i) economic, financial market, or geopolitical conditions changes in generalgeneral economic conditions, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, including any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Company and its subsidiaries to the extent due to the announcement and performance of this Agreement or the identity of the parties to this Agreement, or the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein, (iv) any actions required under this Agreement to obtain any approval or authorization under applicable antitrust or competition laws for the consummation of the Merger or (v) changes in Tax any tax laws or regulations or applicable accounting regulations or principles or interpretations thereofprinciples, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long asunless, in the case of the foregoing clauses (i), ) and (ii), (iv) and (vii), the such changes referred to therein have a disproportionate effect on the Company and its subsidiaries, subsidiaries taken as a whole, is not disproportionate whole relative to that on other companies participants in the industry industries in which the Company operatesand its subsidiaries operate.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Neiman Marcus, Inc.), Agreement and Plan of Merger (Neiman Marcus, Inc.)
Organization and Qualification; Subsidiaries. (a) The Company Parent has been duly organized and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the its jurisdiction of its organization incorporation or organization, and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in . Each of the aggregate, reasonably be expected to have Parent and the subsidiaries of the Parent (each a Material Adverse Effect (as defined below). The Company and each of its subsidiaries "Parent Subsidiary") is duly qualified or ----------------- licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing would notthat, individually or in the aggregate, reasonably be expected to have a has no Material Adverse EffectEffect on the Parent. “For purposes of this Agreement, "Material Adverse Effect” Effect on the Parent" means any change, effect, event, circumstance, occurrence or state of facts ------------------------------------- affairs or change that is materially has had, or will have, a material adverse to (a) effect on the business, financial conditionassets, properties, results of operations, assets operations or liabilities condition (financial or otherwise) of the Company Parent and its subsidiaries the Parent Subsidiaries, taken as a whole whole, or (b) that has materially impaired or will materially impair the Company’s ability of the Parent to perform its obligations under this Agreement or to consummate the Merger; providedMerger and the other transactions contemplated by this Agreement, however, that, in the case of the immediately preceding clause (a), except that none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, following shall be deemed in themselves, either alone or in combination, themselves to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, constitute a Material Adverse EffectEffect on the Parent: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes any change in the market price or trading volume of the Company Common Stock (but securities of the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)Parent after the date hereof, (viii) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)general economic conditions, (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viiiiii) any litigation brought or threatened by adverse change involving the stockholders of e-commerce industry generally, and (iv) transaction costs, taxes, accounting changes, integration costs and other effects that result directly from the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance consummation of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operatesby this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Brokat Infosystems Ag), Agreement and Plan of Merger (Blaze Software Inc)
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization Delaware Law and has all the requisite corporate or similar power and authority to own, lease lease, and operate its properties and assets and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, business and is in good standing, standing in each jurisdiction where the character of the properties owned, leased or operated by it or in which the nature of its activities business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where any such the failure to be so qualified or licensed or in good standing would not, (individually or in the aggregate, ) would not reasonably be expected to have a Material Adverse EffectEffect on the Company. As used in this Agreement, “Material Adverse Effect” means means, with respect to the Company or Parent, as applicable (the Company or Parent, as applicable, being referred to in this sentence as “such Person”), any change, effect, event, circumstance, occurrence or state of facts (an “Effect”) (or any development that has had or is reasonably likely to have any Effect) that, (A) is materially adverse to (a) the business, financial condition, condition or results of operations, assets or liabilities operations of the Company such Person and its subsidiaries Subsidiaries, taken as a whole whole, or (bB) which would prevent or materially delay the Company’s ability to consummate consummation of the MergerTransactions; provided, however, that, in the case of the immediately preceding clause (a), that none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, following shall be deemed in themselves, either alone or in combination, to constitute, and none of them the following shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes a change in the market price or trading volume of the Company Common Stock (but the reasons or causes capital stock of such changes Person after the date hereof, provided, however, that this clause (i) shall not exclude any underlying Effect which may constitute a Material Adverse Effect have caused such change in stock price or trading volume; (ii) disruption in financial, credit, banking or securities markets (including any disruption thereof and may be taken into account any decline in determining whether there has been the price of any security or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declaredmarket index) or terrorismany interest rate or exchange rate changes, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or generally which does not disproportionately affect such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company Person and its subsidiariesSubsidiaries, taken as a whole, is not disproportionate ; (iii) any Effect arising from or relating to that on other companies in the industry in which the Company operates.general
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Crane & Co Inc), Voting Agreement (American Bank Note Holographics Inc)
Organization and Qualification; Subsidiaries. The Company Each of Buyer and each of its subsidiaries Merger Subsidiary is a limited partnership or corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its incorporation or organization and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such the failure to be so organized, existing or in good standing or to have such power or power, authority and governmental approvals would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect (as defined below). The Company Each of Buyer and each of its subsidiaries Merger Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing that would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect. The term “Buyer Material Adverse Effect” means any change, effectcondition, eventcircumstance or effect that is, circumstanceor is reasonably likely to be, occurrence or state of facts that is materially adverse to the assets and liabilities (a) the taken together), business, financial condition, condition or results of operations, assets or liabilities operations of the Company Buyer, Merger Subsidiary and its subsidiaries each of Buyer’s other subsidiaries, taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any other than changes, effectsconditions, events, circumstances, occurrence circumstances or state effects that are the result of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economiceconomic factors affecting the economy or financial markets as a whole or generally affecting any of the industries and markets in which Buyer, financial market, Merger Subsidiary or geopolitical conditions in generalany of Buyer’s other subsidiaries operates, (ii) general changes natural disasters, acts of war, sabotage or developments in terrorism, military actions or the industries in which the Company and its subsidiaries operateescalation thereof, (iii) the announcement of this Agreement and the transactions contemplated herebyany change in applicable laws, rules or regulations or accounting rules or (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, actions contemplated by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or parties in connection with this Agreement or the existence, announcement or performance of this Agreement or Agreement, except that the transactions contemplated hereby, so long as, exclusions set forth in the case of clauses (i), (ii), (iv) and (vii)iii) shall only be effective if the Buyer, the effect on the Company and its subsidiariesMerger Subsidiary or Buyer’s other subsidiaries are not substantially, taken as a whole, is not disproportionate disproportionately impacted in financial terms by such events when compared to that on other companies in the industry industries in which the Company operatesBuyer, Merger Subsidiary or Buyer’s other subsidiaries operate).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Chart Industries Inc), Agreement and Plan of Merger (Chart Industries Inc)
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would notauthority, individually or in the aggregate, (x) has not had, and would not reasonably be expected to have have, a Company Material Adverse Effect (as defined below)) and (y) would not reasonably be expected to prevent, materially delay or materially impede the ability of the Company to consummate the Merger or the other transactions contemplated by this Agreement. The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing (with respect to jurisdictions that recognize the concept of good standing, ) in each jurisdiction where the character of the its properties owned, leased or operated by it or the conduct of its business or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure to be so qualified or licensed or in good standing would notwhich, individually or in the aggregate, (x) has not had, and would not reasonably be expected to have have, a Company Material Adverse Effect and (y) would not reasonably be expected to prevent, materially delay or materially impede the ability of the Company to consummate the Merger or the other transactions contemplated by this Agreement. "Company Material Adverse Effect. “Material Adverse Effect” " means any change, effect, event, circumstance, occurrence event or state of facts effect that is has been or would be materially adverse to (a) the business, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries taken as a whole whole, other than any change, event or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or effect resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: from (i) economicchanges in general economic conditions (except to the extent that those changes, financial market, events or geopolitical conditions in general, (ii) general changes or developments in the industries in which effects have a materially disproportionate effect on the Company and its subsidiaries operaterelative to other participants in the advertising industry), (iiiii) the announcement of this Agreement and the transactions contemplated hereby, including any termination of, or reduction in, client business due to the announcement and performance of this Agreement or the identity of the parties to this Agreement, or the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants contained herein, (iii) changes in general conditions in the advertising industry (except to the extent that those changes, events or effects have a materially disproportionate effect on the Company and its subsidiaries relative to other participants in the advertising industry), (iv) changes in Tax any tax laws or regulations or applicable accounting regulations or principles (except to the extent that those changes, events or interpretations thereof, effects have a materially disproportionate effect on the Company and its subsidiaries relative to other participants in the advertising industry) or (v) changes in only with respect to the market price or trading volume clients listed on Section 3.1 of the Company Common Stock (but Disclosure Schedule, the reasons or causes impact of such changes may constitute a Material Adverse Effect and may be taken into account any change in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, client business publicly announced by the Company or such client prior to meet any expected the date of this Agreement; provided that the exception set forth in clause (ii) shall not apply with respect to the representations and warranties set forth in Sections 3.4 and 3.5 or projected financial the absence of conflict or operating performance target, as well as any change by the Company similar representations set forth in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declaredSection 3.10(j) or terrorism, or (viii) with respect to any litigation brought or threatened failure by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in take any action prohibited by Section 5.1 for which the Company operatesconsent of Parent is properly withheld).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Grey Global Group Inc), Agreement and Plan of Merger (WPP Group PLC)
Organization and Qualification; Subsidiaries. The (a) Each of the Company and each subsidiary of its subsidiaries the Company (each, a "SUBSIDIARY") is a corporation, limited partnership or limited liability company duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all the requisite corporate corporate, limited liability company or similar limited partnership power and authority authority, as the case may be, and all necessary governmental approvals to own, lease lease, franchise, manage and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in . Each of the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased leased, franchised, managed or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing that would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect. “Material Adverse Effect” The term "COMPANY MATERIAL ADVERSE EFFECT" means any change, effect, event, circumstance, occurrence development, change or state of facts that effect that, individually or in the aggregate with all other events, circumstances, developments, changes and effects, is materially adverse to (a) the business, operations, assets, condition (financial condition, or otherwise) or results of operations, assets or liabilities operations of the Company and its subsidiaries the Subsidiaries taken as a whole or (b) would reasonably be expected to prevent or materially delay the Company’s ability to consummate the Merger; provided, however, that, in the case consummation of any of the immediately preceding clause (a)Transactions or prevent or materially impair or delay the ability of the Company to perform its obligations hereunder; PROVIDED, none HOWEVER, that in no event shall any of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, be deemed to constitute, and none nor shall any of them shall the following be taken into account in determining whether there has been been, or could or would will be, a Material Adverse Effect"COMPANY MATERIAL ADVERSE EFFECT": any event, circumstance, change or effect resulting from or relating to (i) economic, a change in general economic or financial market, or geopolitical conditions in generalmarket conditions, (ii) general changes or developments a change in the industries in which the Company and its subsidiaries operateindustry conditions, (iii) seasonal fluctuations in the announcement business of this Agreement the Company and the transactions contemplated herebySubsidiaries, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national terrorism or international hostilities, war (whether except to the extent such event, circumstance, change or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect has had a disproportionate effect on the Company and its subsidiaries, taken the Subsidiaries as a whole, is not disproportionate compared to that on other companies persons in the industry in which the Company operatesand the Subsidiaries conducts their business), (v) the announcement of the execution of this Agreement or the pendency or consummation of the Transactions, or (vi) compliance with the terms of, or the taking of any action required by, this Agreement; and PROVIDED, FURTHER, that with respect to the representations and warranties set forth in Section 3.05, the exceptions set forth in clauses (v) and (vi) will not apply.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Prime Hospitality Corp), Agreement and Plan of Merger (Prime Hospitality Corp)
Organization and Qualification; Subsidiaries. The (a) Each of the Company and each of its subsidiaries Subsidiaries is a duly organized, organized and validly existing and corporation or other entity in good standing (with respect to jurisdictions which recognize that recognize the concept of good standingconcept) under the laws Laws of the its jurisdiction of its organization and has incorporation or organization, with all requisite corporate or similar other entity power and authority to own, lease and operate own its properties and to carry on conduct its business as currently conducted and is duly qualified and in good standing as a foreign corporation or entity authorized to do business in each of the jurisdictions in which the character of the properties owned or held under lease or sublease by it is now being conductedor the nature of the business transacted by it makes such qualification necessary, except where any such the failure to be so organized, existing or existing, in good standing or to have such power or authority would notnot have or reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified would not prevent or licensed to do business, and is in good standing, in each jurisdiction where materially impair the character ability of the properties owned, leased Company to perform its obligations under this Agreement or operated materially delay the transactions contemplated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectthis Agreement. “Material Adverse Effect” means any change, effect, event, circumstance, event or occurrence or state of facts that is materially has a material adverse to (a) effect on the business, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries Subsidiaries, taken as a whole or (b) the Company’s ability to consummate the Mergerwhole; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or 1) any changes, effects, eventsevents or occurrences shall not be deemed to constitute a Material Adverse Effect to the extent arising out of, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: from (i) economic, financial market, changes in general economic or geopolitical political conditions in general, (ii) general changes or developments in the industries or geographic markets in which the Company and or its subsidiaries Subsidiaries operate; (ii) changes in the securities, credit, currency or financial markets generally; (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes or proposed changes in Tax laws Laws or regulations (or interpretations thereof) of general applicability that are applicable to the Company or its Subsidiaries or applicable accounting regulations or principles or interpretations the interpretation thereof; (iv) compliance with the terms of, or the taking of any action required by, this Agreement or consented to or requested by Parent in writing; (v) any acts of terrorism or war (or the escalation of the foregoing) (other than any of the foregoing that causes any damage or destruction to, or renders unusable any material facility or property of the Company or of any of its Subsidiaries); (vi) changes in the market price supplies or trading volume prices of the Company Common Stock (but the reasons copper or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been other raw materials, commodities or could energy generally; or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance pendency of this Agreement or the transactions contemplated hereby, so long ashereby (except, in the case of the foregoing clauses (i), (ii), (iv) and (viiv), to the extent such changes, effects, events or occurrences referred to therein have a materially disproportionate effect on the Company and its subsidiariesSubsidiaries, taken as a whole, is not disproportionate to that on compared with other companies operating in the industry magnet wire, communications cable, enamel and related distribution businesses); or (2) a decline in which the Company operatestrading price of the Shares or any failure to meet internal or published projections, forecasts or revenue or earning predictions for any period or periods shall not be deemed to constitute a Material Adverse Effect (but this clause (2) shall not prevent or otherwise affect a determination that any fact, circumstance, event, change or development underlying or contributing to such decline or failure has resulted in, or contributed to, a Material Adverse Effect).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (LS Cable Ltd.), Agreement and Plan of Merger (Superior Essex Inc)
Organization and Qualification; Subsidiaries. The (a) Each of the Company and each subsidiary of its subsidiaries the Company (each a "Subsidiary") is a corporation, limited liability company, limited partnership or limited liability partnership duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in . Each of the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing that would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect. “The term "Company Material Adverse Effect” " means any change, effect, event, circumstance, occurrence development, change or state of facts that effect that, individually or in the aggregate with all other events, circumstances, developments, changes and effects, is materially adverse to (a) the business, operations, assets, condition (financial condition, or otherwise) or results of operations, assets or liabilities operations of the Company and its subsidiaries the Subsidiaries taken as a whole or would reasonably be expected to prevent or materially delay the consummation of the Merger and the other transactions contemplated hereby (bcollectively, the "Transactions") or prevent or materially impair or delay the Company’s ability of the Company to consummate the Mergerperform its obligations hereunder; provided, however, that, that in the case of the immediately preceding clause (a), none no event shall any of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, be deemed to constitute, and none nor shall any of them shall the following be taken into account in determining whether there has been been, or could or would will be, a Company Material Adverse Effect: any event, circumstance, change or effect resulting from or relating to (i) economic, a change in general economic or financial market, or geopolitical conditions in generalmarket conditions, (ii) general changes or developments a change in the industries in which the Company and its subsidiaries operateindustry conditions, (iii) seasonal fluctuations in the announcement business of this Agreement the Company and the transactions contemplated herebySubsidiaries, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national terrorism or international hostilities, war (whether except to the extent such event, circumstance, change or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect has had a disproportionate effect on the Company and its subsidiaries, taken the Subsidiaries as a whole, is not disproportionate compared to that on other companies persons in the industry in which the Company operatesand the Subsidiaries conduct their business), (v) the announcement of the execution of this Agreement or the pendency or consummation of the Transactions, or (vi) compliance with the terms of, or the taking of any action required by, this Agreement; provided further that the exceptions set forth in clauses (v) and (vi) will not apply with respect to the representations and warranties set forth in Section 3.05.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Huizenga H Wayne), Agreement and Plan of Merger (Boca Resorts Inc)
Organization and Qualification; Subsidiaries. The Company Parent is a corporation duly incorporated and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction State of its organization Delaware, and Merger Sub is a limited liability company duly organized and validly existing in good standing under the laws of the State of Delaware. Each of Parent and Merger Sub has all the requisite corporate or similar power and authority to own, own or lease and operate its properties and to carry on its business as it is now being conductedconducted and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character of the properties owned or leased by it makes such licensing or qualification necessary, except where any such the failure to be so organized, existing licensed or in good standing or to have such power or authority qualified would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect on Parent (as defined below). The Company Each subsidiary of Parent (i) is duly organized and each validly existing under the laws of its subsidiaries jurisdiction of organization, (ii) has the requisite corporate or other business entity power and authority to own or lease its properties and to carry on its business as it is now being conducted and (iii) is duly licensed or qualified or licensed to do business, and is in good standing, business in each jurisdiction where in which the nature of the business conducted by it or the character of the properties owned, owned or leased or operated by it or the nature of its activities makes such licensing or qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing each case, except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. When used in connection with Parent or any of its subsidiaries, the term “Parent Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is materially a material adverse to (a) effect on the business, properties, financial condition, condition or results of operations, assets or liabilities operations of the Company Parent and its subsidiaries taken as a whole or (b) on the Company’s ability of Parent and Merger Sub to consummate the Merger; transactions contemplated by this Agreement, except, in each case, for any such effect attributable to (i) general economic, capital market, regulatory or political conditions, any outbreak of hostilities or war (including acts of terrorism), natural disasters or other force majeure events, in each case in the United States or elsewhere, provided, however, thatthat any such condition or event which disproportionately impacts Parent or its subsidiaries taken as a whole, in relative to other industry participants, may be considered to the case extent of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in generalsuch disproportionate impact, (ii) changes in or events or conditions generally affecting the oil and gas exploration and development industry or exploration and production companies of a similar size to Parent (including changes in commodity prices and general changes or developments in the industries in which the Company and its subsidiaries operatemarket prices), (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or laws, regulations or applicable accounting regulations or principles GAAP or interpretations thereof, (iv) the announcement or pendency of this Agreement, any actions taken in compliance with this Agreement or the consummation of the Merger, (v) any failure by Parent to meet estimates of revenues or earnings for any period ending after the date of this Agreement, provided that this clause (v) does not prevent a determination that any underlying causes of such failure resulted in or contributed to a Parent Material Adverse Effect, (vi) fluctuations in currency exchange rates, (vii) the downgrade in rating of any debt securities of Parent by Standard & Poor’s Rating Group, Xxxxx’x Investor Services, Inc. or Fitch Ratings, provided that this clause (vii) does not prevent a determination that any underlying causes of such downgrade resulted in or contributed to a Parent Material Adverse Effect or (viii) changes in the market price or trading volume of the Company Common Stock Parent’s stock, provided that this clause (but the reasons or viii) does not prevent a determination that any underlying causes of such changes may constitute resulted in or contributed to a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Parent Material Adverse Effect), (vi) the failure, in . A true and complete list of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operates.all Parent’s
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pogo Producing Co), Agreement and Plan of Merger (Plains Exploration & Production Co)
Organization and Qualification; Subsidiaries. The Company HTV is a --------------------------------------------- corporation, and each of its HTV's subsidiaries (as such term in defined in Section ------- 9.03 herein) is a corporation, duly organized, validly existing and in good ---- standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation or organization, and each of HTV and its subsidiaries has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on conduct its business as it is now being conductedconducted and is qualified to do business and is in good standing in each jurisdiction in which the nature of the business conducted by it or the ownership or leasing of its properties makes such qualification necessary, except other than where any such the failure to be so organized, existing or qualified and in good standing or to have such power or authority would not, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a HTV Material Adverse Effect. “The term "HTV Material Adverse Effect” means " as used in this Agreement shall mean any change, effect, event, circumstance, occurrence ------------------------------ change or state of facts effect that is would be materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the followingbusiness, or any changes, effects, events, circumstances, occurrence or state prospects of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company HTV and its subsidiaries, taken as a whole, is not disproportionate at the time of such change or effect. Section 3.01 of the ------------ Disclosure Schedule delivered by HTV to that on AIN concurrently with the execution of this Agreement (the "HTV Disclosure Schedule") sets forth, as of the date of ------------------------ this Agreement, a true and complete list of all HTV's directly or indirectly owned subsidiaries, together with the jurisdiction of incorporation or organization of each such subsidiary and the percentage of each such subsidiary's outstanding capital stock or other companies in the industry in which the Company operatesequity interests owned by HTV or another subsidiary of HTV.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hispanic Television Network Inc)
Organization and Qualification; Subsidiaries. The Company Each of Xxxxxx Xxxxxxx and each other subsidiary of its subsidiaries is Xxxxxx Xxxxxxx (collectively, the "Xxxxxx Xxxxxxx Subsidiaries") has been duly organized, and is validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) , under the laws of the jurisdiction of its organization incorporation or organization, as the case may be, and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such the failure to be so organized, existing or in good standing or to have such power or power, authority and governmental approvals would not, individually or in the aggregate, reasonably be expected to have a Xxxxxx Xxxxxxx Material Adverse Effect (as defined below). The Company Each of Xxxxxx Xxxxxxx and each of its subsidiaries the other Xxxxxx Xxxxxxx Subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing or good standing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing that would not, individually or in the aggregate, reasonably be expected to have a Xxxxxx Xxxxxxx Material Adverse Effect. “For purposes of this Agreement, "Xxxxxx Xxxxxxx Material Adverse Effect” " means any changechange in or effect on the business of Xxxxxx Xxxxxxx and the Xxxxxx Xxxxxxx Subsidiaries that is, effector is reasonably likely to be, event, circumstance, occurrence or state of facts that is materially adverse to (a) the business, financial condition, results of operations, assets operations or liabilities prospects of Xxxxxx Xxxxxxx and the Company and its subsidiaries Xxxxxx Xxxxxxx Subsidiaries taken as a whole other than any change, effect, event or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions the United States economy in general, (ii) general changes this Agreement or developments in the industries in which transactions contemplated hereby or the Company and its subsidiaries operateannouncement thereof, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws failure to obtain applicable regulatory or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and third party consents that may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or required in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), or (iv) and (vii)to the offshore oil services industry in general; provided, the however, that a Xxxxxx Xxxxxxx Material Adverse Effect shall include any change in or effect on the Company business of Xxxxxx Xxxxxxx and its subsidiariesthe Xxxxxx Xxxxxxx Subsidiaries that is, or is reasonably likely to be, materially adverse to the business, financial condition, results of operations or prospects of Xxxxxx Xxxxxxx and the Xxxxxx Xxxxxxx Subsidiaries taken as a whole, whole if such change or effect is not disproportionate significantly more adverse to that on other companies in Xxxxxx Xxxxxxx and the Xxxxxx Xxxxxxx Subsidiaries taken as a whole than to the offshore oil services industry in which general. Section 4.01 of the Company operatesXxxxxx Xxxxxxx Disclosure Schedule sets forth a complete and correct list of all of the Xxxxxx Xxxxxxx Subsidiaries. Xxxxxx Xxxxxxx has made available to Halter Marine prior to the execution of this Agreement complete and correct copies of its certificate of incorporation and by-laws, as amended to date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Halter Marine Group Inc)
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws Laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would notauthority, individually or in the aggregate, (x) has not had, and would not reasonably be expected to have have, a Company Material Adverse Effect and (as defined below)y) would not reasonably be expected to prevent, materially delay or materially impede the ability of the Company to consummate the Merger or the other transactions contemplated by this Agreement. The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing (with respect to jurisdictions that recognize the concept of good standing, ) in each jurisdiction where the character of the its properties owned, leased or operated by it or the conduct of its business or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure to be so qualified or licensed or in good standing would notwhich, individually or in the aggregate, (x) has not had, and would not reasonably be expected to have have, a Company Material Adverse Effect and (y) would not reasonably be expected to prevent, materially delay or materially impede the ability of the Company to consummate the Merger or the other transactions contemplated by this Agreement. "Company Material Adverse Effect. “Material Adverse Effect” " means any change, event, circumstance or effect, eventtaken as a whole, circumstance, occurrence that has been or state of facts that is would be materially adverse to (a) the business, assets, properties, liabilities, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries taken as a whole whole, other than any change, event, circumstance or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or effect resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: from (i) economic, financial market, or geopolitical conditions changes after the date hereof in generalgeneral economic conditions, (ii) general changes or developments after the date hereof in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations any Laws or applicable accounting regulations or principles or interpretations thereofprinciples, (viii) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be actions taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, its subsidiaries as well as any change required by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance provisions of this Agreement or (iv) the announcement or pendency of this Agreement or any of the transactions contemplated hereby, so long as, ; provided that the exceptions set forth in the case of clauses (i), (ii), iii) and (iv) shall not apply with respect to (x) the representations and (vii)warranties set forth in Sections 3.4, 3.5 and 3.17, the effect on absence of conflict or similar representations set forth in Sections 3.10(f) or with respect to the effects of any breach of such representations and warranties or (y) Sections 6.8 or 7.1. Section 3.1 of the Company and its subsidiaries, taken Disclosure Schedule sets forth a complete list of the material subsidiaries that are owned directly or indirectly by the Company. Other than as a whole, is not disproportionate to that on other companies set forth in the industry in which Section 3.1 of the Company operatesDisclosure Schedule and other than subsidiaries of the Company, the Company does not own, directly or indirectly, any capital stock or other equity interests in any other person having a fair market value in excess of $10,000,000.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company is -------------------------------------------- a corporation, and each of its the Company's subsidiaries (as such term in defined in Section 9.03 herein) is a corporation or partnership, duly organized, validly ------------ existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation or organization, and each of the Company and its subsidiaries has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on conduct its business as it is now being conductedconducted and is qualified to do business and is in good standing in each jurisdiction in which the nature of the business conducted by it or the ownership or leasing of its properties makes such qualification necessary, except other than where any such the failure to be so organized, existing or qualified and in good standing or to have such power or authority would not, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “The term "Company Material Adverse Effect” means " as used in this ------------------------------- Agreement shall mean any change, effect, event, circumstance, occurrence change or state of facts effect that is would be materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the followingbusiness, or any changes, effects, events, circumstances, occurrence or state prospects of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate at the time of such change or effect; provided, however, no Company Material Adverse Effect shall be deemed to that on other companies in the industry in which have occurred hereunder (i) as a result of customers of the Company operates.deferring or delaying orders as a result of the announcement of the execution of this Agreement, (ii) if the financial condition or results of operations of the Company's business are not materially and adversely different from those announced with respect to the Company's quarter ended September 30, 1996, or (iii) as a result of the Company employee departures after the announcement of the execution of this Agreement. Section 3.01 of the Disclosure Schedule ------------ delivered by the Company to the VTEL Companies concurrently with the execution of this Agreement (the "Company Disclosure Schedule") sets forth, as of the date --------------------------- of this Agreement, a true and complete list of all the Company's directly or indirectly owned subsidiaries, together with (a) the jurisdiction of incorporation or organization of each such subsidiary and the percentage of each such subsidiary's outstanding capital stock or other equity interests owned by the Company or another subsidiary of the Company and (b) an indication of whether each such subsidiary is a "Significant Subsidiary" as defined in Section ---------------------- ------- 9.03 of this Agreement. ----
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the its properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure to be so qualified or licensed or in good standing which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means shall mean any change, effect, event, circumstancecircumstance or change that, occurrence individually or state of facts that is materially in the aggregate, results in a material adverse to (a) effect on the business, financial condition, assets, liabilities or results of operations, assets or liabilities operations of the Company and its subsidiaries subsidiaries, taken as a whole or (b) the Company’s ability to consummate the Mergerwhole; provided, however, that, in the case of the immediately preceding clause (a), that none of the following, or any changes, effects, events, circumstances, occurrence circumstances or state of facts changes relating to thereto or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could been, or would reasonably be expected to be, a Material Adverse Effect: (i) economic, financial market, or geopolitical general economic conditions (including conditions in generalthe stock markets or other capital markets) or developments or changes therein, (ii) general changes or developments conditions in the industries industry in which the Company and its subsidiaries operateoperate or developments or changes therein, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes any change in the market price or trading volume of the Company Common Stock after the date hereof (but provided that the reasons or underlying causes of such changes may constitute a Material Adverse Effect and may change shall be taken into account considered in determining whether there has been or could been, or would reasonably be expected to be, a Material Adverse Effect), (viiv) the failureexistence, in and announcement or performance of itselfthis Agreement or the transactions contemplated hereby, including compliance by the Company with its covenants and agreements contained in this Agreement, (v) any actions taken or omitted to be taken by Parent or Merger Sub or their respective affiliates, (vi) any change in applicable law or accounting regulation or principle effected after the date hereof, (vii) failure by the Company or any of its subsidiaries to meet any expected projections, estimates or projected financial budgets for any period prior to, on or operating performance target, as well as any change by after the Company in any expected or projected financial or operating performance target date of this Agreement (but provided that the reasons or underlying causes of such failures or changes may constitute a Material Adverse Effect and may failure shall be taken into account considered in determining whether there has been or could been, or would reasonably be expected to be, a Material Adverse Effect), ) or (viiviii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as; except, in the case cases of clauses (i), (ii), (iv) and (vii)viii) above, if such effect, event, circumstance or change disproportionately impacts the effect on business, financial condition, assets, liabilities or results of operations of the Company and its subsidiaries, taken as a whole, is not disproportionate relative to that on other companies participants in the industry in which the Company operatesand its subsidiaries operate.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is -------------------------------------------- a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize under the concept Laws of the State of Delaware. Each of the Company's subsidiaries is a corporation duly organized, validly existing and in good standing) standing under the laws of the jurisdiction of its organization incorporation. The Company and each of its subsidiaries has all the requisite corporate or similar power and authority to own, operate or lease and operate its properties and to carry on its business as it is now being conducted, and is duly qualified or licensed to do business, and is in good standing, in each jurisdiction in which the nature of its business or the properties owned, operated or leased by it makes such qualification, licensing or good standing necessary, except where any such the failure to be so organized, existing or in good standing or to have such power or authority authority, or the failure to be so qualified, licensed or in good standing, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below)on the Company. The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a term "Material Adverse Effect. “Material Adverse Effect” Effect on the Company," as used in this Agreement, means any change, effect, event, circumstance, occurrence change in or state of facts that is materially adverse to (a) effect on the business, assets, liabilities, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, individually or in the case of the immediately preceding clause (a), none of the following, or any changes, aggregate with all other changes and effects, events, circumstances, occurrence or state of facts relating would reasonably be expected to or resulting therefrom, shall be deemed in themselves, either alone or in combination, materially adverse to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operatetaken as a whole, other than (iiia) the effects of changes that are generally applicable to (i) the United States economy or securities markets, or (ii) the world economy or international securities markets, and (b) changes or effects to the extent arising from the announcement of this Agreement and the transactions contemplated herebyhereby (including the sale or other disposition of the Excluded Business and the shut- down of the NAS Business (excluding the Excluded Business) (each as defined in Section 6.13 hereof) contemplated by this Agreement and any loss of relationships with customers, (iv) changes suppliers, distributors, sales representatives or employees or the delay or cancellation of orders for products or services, in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereofeach case to the extent arising from such announcement); provided, (v) changes that a change in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failureShares shall not, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect on the Company (it being understood that this proviso shall not exclude any underlying change or effect which resulted in such change in the market price or trading volume). The Company has heretofore provided to Parent and may be taken into account in determining whether there has been the Purchaser a complete and correct copy of the certificate of incorporation and the bylaws or could or would be a Material Adverse Effect)comparable organizational documents, (vii) acts of Godeach as amended to the date hereof, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or and each of its subsidiaries, and has provided a complete and correct copy of the Rights Agreement as amended to the date hereof. Neither the Company nor any of its non-wholly-owned subsidiaries (whether on behalf is in violation of or default under any of the provisions of its respective certificate of incorporation, bylaws or comparable organizational documents. The Company has made available to Parent and its representatives true and complete copies of the minutes of all meetings of the stockholders, the Board of Directors and each committee of the Board of Directors of the Company or held since January 1, 1998, and such subsidiaries or otherwiseminutes accurately reflect all proceedings of the stockholders and Board of Directors (and all committees thereof) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operatesCompany.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Each of the Company and each of its subsidiaries Subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization in which it is organized and has all the requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in . Each of the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries Subsidiaries is duly qualified or licensed to do business, business and is in good standing, standing in each jurisdiction where the character of the properties owned, leased or operated by it or in which the nature of its activities business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where any such the failure to be so qualified or licensed or in good standing would notlicensed, individually or in the aggregate, would not reasonably be expected to have a Material Adverse EffectEffect on the Company. As used in this Agreement, “Material Adverse Effect” means means, except as otherwise provided in Sections 7.02, 7.03 and 8.01(d)(i), any change, effect, event, circumstance, occurrence or state of facts (or any development that has had or is reasonably likely to have any change or effect) that is, individually or in the aggregate, materially adverse to (a) the business, property, assets, liabilities, financial condition, condition or results of operationsoperations of Parent or any of its Subsidiaries, assets in the case of Parent, or liabilities of the Company and or any of its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, thatSignificant Subsidiaries, in the case of the immediately preceding clause (a)Company, or which would prevent or materially delay the consummation of the Transactions; provided, however, that none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, following shall be deemed in themselves, either alone or in combination, to constitute, and none of them the following shall be taken into account in determining whether there has been or could or would bebeen, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes any adverse change in the market price or trading volume of the Company Common Stock (but the reasons or causes capital stock of such changes Person after the date hereof; provided, however, that this clause (i) shall not exclude any underlying event, occurrence, development or circumstance which may constitute a Material Adverse Effect have caused such change in stock price or trading volume; (ii) any adverse event, occurrence or development affecting any of the industries in which such Person operates generally (to the extent that such events, occurrences or developments do not disproportionately affect such Person as compared to other companies in such industries); (iii) changes, events or occurrences in financial, credit, banking or securities markets (including any disruption thereof); (iv) any adverse change, event, development or effect arising from or relating to general business or economic conditions (including the business of Parent or any of its Subsidiaries, in the case of Parent, and may be taken into account the Company or any of its Significant Subsidiaries, in determining whether there has been the case of the Company) which does not relate only to Parent or could any of its Subsidiaries, in the case of Parent, or would be a Material Adverse Effect)the Company or any of its Significant Subsidiaries, in the case of the Company; (v) any adverse change, event, development or effect attributable to the announcement or pendency of the Transactions, or resulting from or relating to compliance with the terms of, or the taking of any action required by, this Agreement; (vi) any adverse change, event, development or effect arising from or relating to national or international political or social conditions, including the failureengagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack anywhere in the world; and (vii) any adverse change, event, development or effect arising from or relating to laws, rules, regulations, orders or other binding directives issued by any Governmental Entity that do not relate only to Parent or any of its Subsidiaries, in the case of Parent, or the Company or any of its Significant Subsidiaries, in the case of the Company. The term “Subsidiary,” with respect to any Person, means any corporation or other legal entity of which such Person Controls (either alone or through or together with any other Subsidiary), directly or indirectly, more than 50% of the capital stock or other ownership interests the holders of which are generally entitled to vote for the election of the Board of Directors or other governing body of such corporation or other legal entity. The Company Disclosure Memorandum lists each Subsidiary of the Company. The Company has made available to Parent complete and correct copies of itselfits certificate of incorporation and by-laws and the certificates of incorporation and by-laws (or comparable charter documents) of its Subsidiaries, in each case as amended to the date hereof. Except as set forth in the Company Disclosure Memorandum, all of the outstanding shares of capital stock or other ownership interests of each Subsidiary have been validly issued and are fully paid and nonassessable and owned by the Company, by another Subsidiary of the Company or by the Company and another such Subsidiary, free and clear of all material pledges, claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”), and free of any restriction on the right to meet any expected vote, sell or projected financial otherwise dispose of such capital stock or operating performance targetother ownership interests, except for restrictions imposed by applicable securities laws. Except as well as any change by set forth in the Company in any expected or projected financial or operating performance target Disclosure Memorandum, there are no outstanding (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (viii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders securities of the Company or any of its non-wholly-owned subsidiaries (whether on behalf Subsidiaries convertible into or exchangeable for shares of capital stock or other ownership interests in any Subsidiary of the Company or such subsidiaries (ii) options or otherwise) arising out other rights to acquire from the Company or any of its Subsidiaries, or in connection with other obligation of the existenceCompany or any of its Subsidiaries to issue, announcement any capital stock or performance other ownership interests in, or any securities convertible into or exchangeable for any capital stock or other ownership interests in, any Subsidiary of this Agreement or the transactions contemplated hereby, so long as, Company. Except as set forth in the case Company Disclosure Memorandum, and except for ownership of clauses (i), (ii), (iv) less than 1% in any publicly traded company and (vii)the capital stock or other ownership interests of its Subsidiaries, the effect on the Company and its subsidiariesdoes not own, taken as a wholedirectly or indirectly, is not disproportionate to that on any capital stock or other companies ownership interest in the industry in which the Company operatesany corporation, partnership, joint venture or other entity.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company Each of Parent and each of its subsidiaries is a corporation, limited partnership or limited liability company, duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and incorporation or organization, has all requisite corporate corporate, limited partnership or similar limited liability company power and authority to own, lease and operate its properties and to carry on its business as it is now being conductedconducted and is duly qualified and in good standing to do business in each jurisdiction in which the nature of the business conducted by it or the ownership or leasing of its properties makes such qualification necessary, except other than where any such the failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to not have a Parent Material Adverse Effect. “The term "Parent Material Adverse Effect” means " as used in this Agreement shall mean any changechange or effect that, effectindividually or when taken together with all other such changes or effects, event, circumstance, occurrence or state of facts that is would be materially adverse to (a) the business, operations, assets, financial condition, or results of operations, assets or liabilities operations of the Company Parent and its subsidiaries subsidiaries, taken as a whole or (b) the Company’s ability to consummate the Mergerwhole; provided, however, that, in the case of the immediately preceding clause (a), that none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, following shall be deemed in themselves, either alone or in combination, and of themselves to constitute, and none of them the following shall be taken into account in determining whether there has been or could or would bebeen, a Parent Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes any change in the market price or trading volume of the Company Common Stock (but capital stock of the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)Parent after the date hereof, (viii) the failure, suspension of trading in and of itself, by securities generally on the Company to meet any expected NYSE or projected financial the American Stock Exchange or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)NASDAQ National Market, (viiiii) acts of Godany adverse change, national event, development or international hostilities, war offset arising from or relating to (whether A) general business or not declared) or terrorism, economic conditions or (viiiB) general business or economic conditions relating to any litigation brought or threatened by industries in which the stockholders of the Company Parent or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long asparticipates, in each case which is not specific to the case of clauses (i), (ii), (iv) and (vii), the effect on the Company Parent and its subsidiaries, taken as a wholeand (iv) any adverse change, is not disproportionate event, development or effect arising from or relating to that on other companies any change in the industry in which the Company operatesU.S. generally accepted accounting principles.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Each of the Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined belowherein). The Each of the Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, business in each jurisdiction where the character of the its properties owned, leased or operated by it or the nature n ature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure to be so qualified or licensed or in good standing which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any changefact, effectcircumstance, event, circumstancechange, effect or occurrence that, individually or state of facts that is materially adverse to in the aggregate with all other facts, circumstances, events, changes, effects, or occurrences, (a) has or would be reasonably expected to have a material adverse effect on or with respect to the assets, business, financial condition, results of operations, assets operations or liabilities financial condition of the Company and its subsidiaries taken as a whole or (b) would prevent, materially delay or materially impede the Company’s ability of the Company to consummate the Merger; , provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be) only, a Material Adverse Effect: Effect shall not include facts, circumstances, events, changes, effects or occurrences (i) economicgenerally affecting the economy or the financial, financial marketdebt, credit or securities markets in the United States, including as a result of changes in geopolitical conditions in generalconditions, (ii) general generally affecting any of the industries in which the Company or its subsidiaries operate, (iii) resulting from the announcement of this Agreement and the transactions contemplated hereby, including any stockholder litigation relating thereto or including any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Company and its subsidiaries due to the announcement and performance of this Agreement or the identity of the parties to this Agreement, or the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein, (iv) resulting from any actions expressly required under this Agreement to obtain any approval or authorization under applicable antitrust or competition laws for the consummation of the Merger, (v) resulting from changes after the date hereof in any applicable laws or developments applicable accounting regulations or principles or interpretations thereof, provided that in the case of this clause (v) such changes shall not be excluded to the extent that such changes have a materially disproportionate effect on the Company and its subsidiaries taken as a whole compared with other companies operating in any of the principal industries in which the Company and its subsidiaries operate, (iiivi) resulting from any outbreak or escalation of hostilities or war or any act of terrorism, or (vii) resulting from any failure by the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws Company to meet any published analyst estimates or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company Common Stock to meet its internal or published projections, budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but it being understood that the reasons facts or causes occurrences giving rise or contributing to any such failure that are not otherwise excluded from the definition of such changes may constitute a “Material Adverse Effect and Effect” may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long asexcept, in the case of clauses (i), (ii), (iv) and (vii)vi) above, such facts, circumstances, changes, events, effects or occurrences shall not be excluded to the extent that they have a materially disproportionate effect on the Company and its subsidiaries, subsidiaries taken as a whole, is not disproportionate to that on whole compared with other companies operating in any of the industry principal industries in which the Company operatesand its subsidiaries operate.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Rentals Inc /De)
Organization and Qualification; Subsidiaries. The Company Each of the Parent, Merger Sub, and each subsidiary of its subsidiaries the Parent (collectively, the "PARENT SUBSIDIARIES") has been duly organized and is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the its jurisdiction of its organization incorporation or organization, as the case may be, and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted. Each of the Parent, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company Merger Sub and each of its subsidiaries Parent Subsidiary is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing would notthat, individually or in the aggregate, have not resulted and could not reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, result in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)on the Parent. For purposes of this Agreement, (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as "MATERIAL ADVERSE EFFECT ON THE PARENT" means any change by in or effect on the Company in any expected business, assets, properties, results of operations or projected condition (financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of the Parent or in connection with any Parent Subsidiaries that is or could reasonably be expected to be materially adverse to the existence, announcement or performance of this Agreement or Parent and the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiariesParent Subsidiaries, taken as a whole, is not disproportionate or that could reasonably be expected to that on materially impair the ability of the Parent or Merger Sub to perform its obligations under this Agreement or to consummate the transactions contemplated by hereby, other companies than any change or effect relating to, arising out of or resulting from (i) general changes relating to the internet infrastructure or telecommunications industry or (ii) general changes in United States economic conditions, (iii) general changes in the industry in which United States securities markets or (iv) the Company operatesannouncement of the execution of this Agreement or the pendancy or occurrence of any of the transactions contemplated hereby.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Metromedia Fiber Network Inc)
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize under the concept Laws of the State of Delaware. Each of the Company's subsidiaries is a corporation duly organized, validly existing and in good standing) standing under the laws of the jurisdiction of its organization incorporation. The Company and each of its subsidiaries has all the requisite corporate or similar power and authority to own, operate or lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where in which the character nature of its business or the properties owned, operated or leased or operated by it makes such qualification, licensing or good standing necessary, except where the failure to have such power or authority, or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or qualified, licensed or in good standing standing, would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The term "Material Adverse Effect on the Company," as used in this Agreement, means any circumstance, condition, change in or effect on or with respect to the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Company or any of its subsidiaries that, individually or in the aggregate with all other circumstances, conditions, changes and effects, would reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is be materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole whole. The Company has heretofore provided or (b) made available to Parent and the Company’s ability to consummate the Merger; provided, however, that, in the case Purchaser a complete and correct copy of the immediately preceding clause (a)certificate of incorporation and the bylaws or comparable organizational documents, none each as amended to the date hereof, of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and each of its subsidiaries. Neither the Company nor any of its subsidiaries operateis in violation of or default under any of the provisions of its respective certificate of incorporation, (iii) bylaws or comparable organizational documents. The Company has made available to Parent and its representatives true and complete copies of the announcement minutes of this Agreement all meetings of the stockholders, the Board of Directors and each committee of the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume Board of Directors of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itselfeach of its subsidiaries held since January 1, by the Company to meet any expected or projected financial or operating performance target1994, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes and such minutes accurately reflect all proceedings of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders and Board of Directors (and all committees thereof) of the Company or any and of each of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operates.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries (i) is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws Laws of the jurisdiction State of its organization Delaware and has all the requisite corporate or similar power and authority and any necessary governmental authority to own, operate or lease and the properties that it purports to own, operate its properties or lease and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (as defined below). The Company and each of its subsidiaries ii) is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each other jurisdiction where the character of the its properties owned, operated or leased or operated by it or the nature of its activities makes such qualification necessary, except in the case of clause (ii) for failures which, when taken together with all other such failures, would not have a Company Material Adverse Effect (as defined below). SCHEDULE 4.1 of the Disclosure Schedule lists each of the Company's Subsidiaries and their respective jurisdictions of incorporation or licensing necessaryorganization. Each of the Company's Significant Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act and except that the words "10 percent" in such Rule shall in each case be read as "5 percent" for purposes of this Agreement) (i) is a corporation duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of incorporation and has the requisite corporate power and authority and any necessary governmental authority to own, operate or lease the properties that it purports to own, operate or lease and to carry on its business as it is now being conducted (except, other than in such jurisdictions where any such failure with respect to be so Wynn Xxx Company ("WYNN XXX") and the Subsidiaries of Wynn Xxx (collectively, the "WYNN XXX SUBSIDIARIES"), for governmental authority the absence of which would not have a Company Material Adverse Effect and except, with respect to Wynn Xxx and the Wynn Xxx Subsidiaries, for governmental authority the absence of which would not have a material adverse effect on Wynn Xxx and the Wynn Xxx Subsidiaries, taken as a whole), and (ii) is duly qualified or licensed or as a foreign corporation to do business, and is in good standing would notstanding, individually in each other jurisdiction where the character of its properties owned, operated or leased or the nature of its activities makes such qualification necessary, except in the aggregatecase of clause (ii) for failures which, when taken together with all other such failures, would not have a Company Material Adverse Effect. The term "SUBSIDIARY" means any corporation or other legal entity of which the Company (either alone or through or together with any other Subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity. The term "COMPANY MATERIAL ADVERSE EFFECT" means any change, event or effect that has had or would be reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is materially adverse to (a) effect on the business, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries Subsidiaries, taken as a whole (except to the extent that such change, event or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating effect is attributable to or resulting therefrom, shall be deemed results from changes in themselves, either alone general economic conditions or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions securities markets in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) Subsidiaries operate or the effect of the public announcement or pendency of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operates.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wynns International Inc)
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is is, or would reasonably be expected to, individually or in the aggregate, be materially adverse to (a) the business, financial condition, results of operations, condition or assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Mergerwhole; provided, however, that, in the case of the immediately preceding clause (a), that none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) any actions required under this Agreement to obtain approval or authorization under applicable antitrust or competition laws for the consummation of the Merger, (v) changes in Tax any laws or regulations or applicable accounting regulations or principles or interpretations thereof, (vvi) changes in the market price or trading volume of the Company Common Stock (but the reasons provided that any change, effect, event, circumstance, occurrence or causes state of facts that may have caused or contributed to such changes may constitute a Material Adverse Effect and may change in market price or trading volume shall not be taken into account in determining whether there has been or could or would be a Material Adverse Effectexcluded), (vivii) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as (in and of itself) any change by the Company in any expected or projected financial or operating performance target (but the reasons provided that any change, effect, event, circumstance, occurrence or causes state of facts that may have caused or contributed to such failures failure or changes may constitute a Material Adverse Effect and may change shall not be taken into account in determining whether there has been or could or would be a Material Adverse Effectexcluded), or (viiviii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long asunless, in the case of clauses clause (i), (ii), (ivv) and or (vii)viii) such change, the effect, event or occurrence has a materially disproportionate effect on the Company and each of its subsidiaries, taken as a whole, is not disproportionate to that on subsidiaries compared with other companies operating in the industry in which the Company operatesand each of its subsidiaries operate.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries (i) -------------------------------------------- is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws Laws of the jurisdiction State of its organization Delaware and has all the requisite corporate or similar power and authority and any necessary governmental authority to own, operate or lease and the properties that it purports to own, operate its properties or lease and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (as defined below). The Company and each of its subsidiaries ii) is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each other jurisdiction where the character of the its properties owned, operated or leased or operated by it or the nature of its activities makes such qualification necessary, except in the case of clause (ii) for failures which, when taken together with all other such failures, would not have a Company Material Adverse Effect (as defined below). Schedule 4.1 of ------------ the Disclosure Schedule lists each of the Company's Subsidiaries and their respective jurisdictions of incorporation or licensing necessaryorganization. Each of the Company's Significant Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act and except that the words "10 percent" in such Rule shall in each case be read as "5 percent" for purposes of this Agreement) (i) is a corporation duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of incorporation and has the requisite corporate power and authority and any necessary governmental authority to own, operate or lease the properties that it purports to own, operate or lease and to carry on its business as it is now being conducted (except, other than in such jurisdictions where any such failure with respect to be so Xxxx Oil Company ("Xxxx Oil") and the Subsidiaries of Xxxx Oil (collectively, the "Xxxx Oil Subsidiaries"), for governmental authority the absence of which would not have a Company Material Adverse Effect and except, with respect to Xxxx Oil and the Xxxx Oil Subsidiaries, for governmental authority the absence of which would not have a material adverse effect on Xxxx Oil and the Xxxx Oil Subsidiaries, taken as a whole), and (ii) is duly qualified or licensed or as a foreign corporation to do business, and is in good standing would notstanding, individually in each other jurisdiction where the character of its properties owned, operated or leased or the nature of its activities makes such qualification necessary, except in the aggregatecase of clause (ii) for failures which, when taken together with all other such failures, would not have a Company Material Adverse Effect. The term "Subsidiary" means any corporation or other legal entity of which the Company (either alone or through or together with any other Subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity. The term "Company Material Adverse Effect" means any change, event or effect that has had or would be reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is materially adverse to (a) effect on the business, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries Subsidiaries, taken as a whole (except to the extent that such change, event or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating effect is attributable to or resulting therefrom, shall be deemed results from changes in themselves, either alone general economic conditions or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions securities markets in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) Subsidiaries operate or the effect of the public announcement or pendency of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in ). The Company has previously delivered to the market price or trading volume Purchaser a complete and correct copy of the Company Common Stock (but the reasons or causes each of such changes may constitute a Material Adverse Effect its Certificate of Incorporation and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance targetBylaws, as well as any change by the Company currently in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operateseffect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Parker Hannifin Corp)
Organization and Qualification; Subsidiaries. The Company Each of IWO and each of its subsidiaries is a corporation or other legal entity duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws Laws of the jurisdiction of its organization and incorporation or organization, has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conductedconducted and is duly qualified and in good standing to do business in each jurisdiction in which the nature of the business conducted by it or the ownership or leasing of its properties makes such qualification necessary, except other than where any such the failure to be so organized, existing or duly qualified and in good standing or to have such power or authority would not, individually or in the aggregate, not reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a IWO Material Adverse Effect. “The term "IWO Material Adverse Effect” means " as used in this Agreement shall mean any change, effect, event, circumstance, event or occurrence or state of facts that is or would reasonably be expected to be materially adverse to (a) the business, financial condition, results of operations, assets business, properties or liabilities operations of the Company IWO and its subsidiaries subsidiaries, taken as a whole or (b) the Company’s ability to consummate the Mergerwhole; provided, however, thatthat any such change, in the case effect, event or occurrence arising out of the immediately preceding clause or attributable to (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (iA) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company IWO and its subsidiaries operateoperate to the extent generally affecting all other persons operating in such industries, (iiiB) general economic, political or financial market conditions, (C) action taken by IWO with the prior written consent of USU, (D) IWO's compliance with its covenants under, or the terms and conditions of, this Agreement, or (E) the execution or announcement of this Agreement and Agreement, shall be excluded from the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume determination of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a IWO Material Adverse Effect). Schedule 3.01 of the disclosure schedule delivered to USU by IWO on the date hereof (the "IWO Disclosure Schedule") sets forth, as of the date of this Agreement, a true and complete list of all of IWO's directly or indirectly owned subsidiaries, together with (viA) the failurejurisdiction of incorporation or organization of each such subsidiary and the percentage of each such subsidiary's outstanding capital stock or other equity interests owned by IWO or another subsidiary of IWO, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as B) an indication of whether each such subsidiary is a whole, is not disproportionate to that on other companies in the industry in which the Company operatesSignificant Subsidiary.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Each of the Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except except, in the case of any subsidiary of the Company, where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Each of the Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, business in each jurisdiction where the character of the its properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure to be so qualified or licensed or in good standing which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, eventevent or circumstance that is, circumstanceor would reasonably be expected to be, occurrence individually or state of facts that is in the aggregate, materially adverse to (a) the business, condition (financial condition, or otherwise) or results of operations, assets or liabilities operations of the Company and its subsidiaries taken as a whole whole, other than any change, effect or (b) circumstance to the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or extent resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: from (i) changes in general economic, financial market, market or geopolitical conditions in generalconditions, (ii) general changes or developments in the industries industry in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, including any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Company and its subsidiaries to the extent due to the announcement and performance of this Agreement or the identity of Parent or Holdings, or the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein (in each case, other than in respect of Section 3.5), (iv) any actions required under this Agreement to obtain any approval or authorization required under applicable antitrust or competition laws for the consummation of the Merger, (v) changes in Tax any applicable laws or regulations or applicable accounting regulations or principles or interpretations thereof, (vvi) changes in any outbreak or escalation of hostilities or war or any act of terrorism or (vii) any failure by the market price Company to meet any published analyst estimates or trading volume expectations of the Company's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company Common Stock to meet its internal or published projections, budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but it being understood that the reasons facts or causes occurrences giving rise or contributing to such failure that are not otherwise excluded from the definition of such changes may constitute a “Material Adverse Effect and Effect” may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as; provided that, in the case of the immediately preceding clauses (i), (ii), (ivv) and (viivi), the effect on such changes, effects or circumstances do not affect the Company and or its subsidiaries, taken as a whole, is not disproportionate subsidiaries disproportionately relative to that on other companies operating in the industry in which the Company operatessame industry.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company IMSI and each of its subsidiaries is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation and has all the requisite corporate or similar power and authority and is in possession of all franchises, grants, authorizations, licenses, permits, easements, consents, certificates, approvals and orders ("Approvals") necessary to own, lease and operate its the properties it purports to own, operate or lease and to carry on its business as it is now being conducted, except where any such the failure to be so organized, existing or in good standing or to have such power power, authority or authority would not, individually or in the aggregate, reasonably be expected to Approvals does not have a Material Adverse Effect (as defined below). The Company Each of IMSI and each of its subsidiaries is duly qualified or licensed as a foreign corporation, to do business, and is in good standing, in each jurisdiction where the character of the its properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in such jurisdictions except where any such the failure to be so duly qualified or licensed or and in good standing would not, individually or in the aggregate, reasonably be expected to does not have a Material Adverse Effect. “Except as set forth in Schedule 3.1, substantially all of the business and operations of IMSI and its subsidiaries are conducted through, and substantially all of the properties and assets of IMSI or any of its subsidiaries are owned by, IMSI and its subsidiaries. When used in connection with IMSI or any of its subsidiaries, or DCDC or any of its subsidiaries, as the case may be, the term "Material Adverse Effect” " means any change, effecteffect or circumstance that, eventindividually or when taken together with all other such changes, effect or circumstance, that have occurred prior to the date of termination of the occurrence of such change, effect or state of facts that circumstance, (i) is materially adverse to (a) the business, assets (including intangible assets), financial condition, results of operations, assets operations or liabilities prospects of the Company IMSI and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company DCDC and its subsidiaries, as the case may be, in each case taken as a whole, is not disproportionate or (ii) delays or prevents the consummation of the transactions contemplated hereby. Section 3.2 Certificate of Incorporation and By-Laws. IMSI has heretofore furnished to that on other companies in the industry in which the Company operates.DCDC complete and correct copies of IMSI's Certificate of Incorporation and By-Laws and those of each of its subsidiaries, as most recently restated and subsequently amended to date. Section 3.3
Appears in 1 contract
Samples: Agreement and Plan of Merger (Digital Creative Development Corp)
Organization and Qualification; Subsidiaries. The Company and each (a) Each entity that would be a subsidiary of its subsidiaries Newco after giving effect to the Restructuring but without giving effect to the Merger (a "FLO-SUN SUBSIDIARY") is a corporation duly organizedincorporated, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws Laws of the jurisdiction of its organization incorporation and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such the failure to be so organized, existing or in good standing or to have such power or power, authority and governmental approvals would not, individually or in the aggregate, reasonably be expected to have a Flo-Sun Material Adverse Effect (as defined below). The Company and each of its subsidiaries Each Flo-Sun Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing that would not, individually or in the aggregate, reasonably be expected to have a Flo-Sun Material Adverse Effect. “Material Adverse Effect” The term "FLO-SUN MATERIAL ADVERSE EFFECT" means any adverse change, effectcircumstance or effect that, eventindividually or in the aggregate with all other adverse changes, circumstancecircumstances and effects, occurrence is or state of facts that is reasonably likely to be materially adverse to (a) the business, operations, assets, liabilities (including, without limitation, contingent liabilities), financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its nonFlo-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, Sun Subsidiaries taken as a whole. Section 4.01 of the Flo- Sun Disclosure Schedule sets forth, is not disproportionate as of the date of this Agreement, a true and complete list of all of the Flo-Sun Subsidiaries, together with the jurisdiction of incorporation of each Flo-Sun Subsidiary, the percentage of each Flo-Sun Subsidiary's outstanding capital stock or other equity interests owned by FSI or other Flo-Sun Subsidiaries, as the case may be, and the name of each other holder of any such outstanding capital stock or other equity interests and the percentage so held with respect to that on each such Flo-Sun Subsidiary. There are no partnerships or joint venture arrangements or other companies in the industry business entities in which Newco or any Flo-Sun Subsidiary owns an equity interest that is material to the Company operatesbusiness of the Flo-Sun Subsidiaries taken as a whole.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Savannah Foods & Industries Inc)
Organization and Qualification; Subsidiaries. The (a) Each of the Company and each subsidiary of its subsidiaries the Company (collectively, the "Company Subsidiaries") is a corporation duly organizedincorporated, -------------------- validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation or organization, as the case may be, and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such the failure to be so organized, existing or in good standing or to have such power or power, authority would notand governmental approvals, individually or in the aggregate, have not resulted and could not reasonably be expected to have result in a Material Adverse Effect (as defined below)on the Company. The Each of the Company and each of its subsidiaries Company Subsidiary is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing would notthat, individually or in the aggregate, have not resulted and could not reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, result in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)on the Company. For purposes of this Agreement, (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a "Material Adverse Effect and may be taken into account on the ------------------------------ Company" means any change in determining whether there has been or could effect on the business, assets, properties, ------- results of operations or would be a Material Adverse Effect), condition (viifinancial or otherwise) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company Subsidiary that is or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on could reasonably be expected to be materially adverse to the Company and its subsidiariesthe Company Subsidiaries, taken as a whole, is not disproportionate or that could reasonably be expected to that on other companies in materially impair the industry in which ability of the Company operatesto perform its obligations under this Agreement or consummate the Merger and the other transactions contemplated hereby.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Recapitalization (Wilmar Industries Inc)
Organization and Qualification; Subsidiaries. The Each of -------------------------------------------- the Company and each subsidiary of its subsidiaries the Company (each, a "Subsidiary") is a ---------- corporation duly organizedincorporated, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any the lack of such failure to be so organizedpower, existing or in good standing or to have such power or authority and approval would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect (as defined below). The Each of the Company and each of its subsidiaries Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. “The term "Company Material Adverse Effect” " ------------------------------- means any changecircumstances, effectchange in, eventor effect on, circumstancethe Company Group, occurrence when taken as a consolidated whole, or state affecting the Company Commercial Aircraft Business, the Company Government Business or the Company Aeroderivative Business, whether individually or collectively as to any one or more of facts that is such Company Businesses, which is, or could reasonably be expected in the future to be, materially adverse to (a) the businessoperations, financial conditionassets or liabilities, employee relationships, customer or supplier relationships, earnings or results of operations, assets financial projections or liabilities forecasts, or the business prospects and condition (financial or otherwise) of the Company and its subsidiaries Group or any one or more of the Company Businesses, whether individually or taken as a consolidated whole or (b) with respect to the Company’s ability to consummate Company Group. A true and complete list of all the Merger; providedSubsidiaries, however, that, in together with the case jurisdiction of incorporation of each Subsidiary and the percentage of the immediately preceding clause (a)outstanding capital stock of each Subsidiary owned by the Company and each other Subsidiary, none is set forth in Section 3.01 of the followingCompany Disclosure Schedule. Except as set forth in Section 3.01 of the Company Disclosure Schedule, the Company does not directly or indirectly own any equity or similar interest in, or any changesinterest convertible into or exchangeable or exercisable for any equity or similar interest in, effectsany corporation, eventspartnership, circumstanceslimited liability company, occurrence joint venture or state of facts relating to other business association or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operatesentity.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each subsidiary set forth in Section 3.1 of its subsidiaries the Company Disclosure Schedule (each, a "Material Subsidiary") is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure to be so qualified or licensed or in good standing which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “"Material Adverse Effect” "" means any change, circumstance, effect, event, circumstance, event or occurrence or state of facts that is would be materially adverse to (a) the assets, liabilities, business, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries taken as a whole whole, other than any change or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or effect resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: from (i) economic, financial market, or geopolitical conditions changes in generalgeneral economic conditions, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, including any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Company and its subsidiaries to the extent due to the announcement and performance of this Agreement or the identity of the parties to this Agreement, or the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein, (iv) any actions required under this Agreement to obtain any approval or authorization under applicable antitrust or competition laws for the consummation of the Merger or (v) changes in Tax any tax laws or regulations or applicable accounting regulations or principles or interpretations thereofprinciples, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long asunless, in the case of the foregoing clauses (i), ) and (ii), (iv) and (vii), the such changes referred to therein have a disproportionate effect on the Company and its subsidiaries, subsidiaries taken as a whole, is not disproportionate whole relative to that on other companies participants in the industry industries in which the Company operates.and its subsidiaries operate. SECTION 3.2
Appears in 1 contract
Samples: Agreement and Plan of Merger (Neiman Marcus Group Inc)
Organization and Qualification; Subsidiaries. The Company and each of its subsidiaries Subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except except, in the case of any such Subsidiary, where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries Subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that that, individually or in the aggregate, is or would reasonably likely to be (A) materially adverse to (a) the business, financial condition, condition or results of operations, assets or liabilities operations of the Company and its subsidiaries Subsidiaries taken as a whole or (bB) materially adverse to the Company’s ability of the Company to consummate the Mergerperform its obligations under this Agreement; provided, however, that, in the case of the immediately preceding clause (a), that none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse EffectEffect pursuant to clause (A) above: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries Subsidiaries (or their respective customers) operate, (iii) the announcement of this Agreement and the transactions contemplated herebyhereby (it being understood that any adverse change in the Company’s supply relationships following the announcement of this Agreement shall not be deemed to be a change, effect, event, circumstance, occurrence or state of facts relating to or resulting from such announcement), (iv) any actions required under this Agreement, (v) changes in Tax any laws or regulations or applicable accounting regulations or principles or interpretations thereofthereof (so long as such changes were either published in the Federal Register prior to the date of this Agreement or were otherwise publicly proposed by the applicable Governmental Entity in one or more releases or notices published prior to the date of this Agreement), (vvi) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as (in and of itself) any change by the Company in any expected or projected financial or operating performance target (but it being understood that the reasons facts or causes of occurrences giving rise or contributing to such failures change or changes failure may be deemed to constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, terrorism or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long asunless, in the case of each of clauses (i), (ii), (iv) and (vii)) above, the such changes, effects, events, circumstances, occurrence or state of facts have a materially disproportionate effect on the Company and its subsidiariesSubsidiaries, taken as a whole, is not disproportionate relative to that on other companies participants in the industry industries in which the Company operatesand its Subsidiaries operate.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The (a) Each of the Company and each subsidiary of its subsidiaries the Company (each, a “Subsidiary”) is a corporation. limited partnership or limited liability company duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except except, in the case of the Subsidiaries, where any such the failure to be so organized, existing or in good standing or to have such power or power, authority and governmental approvals would not, individually or in the aggregate, reasonably be expected to not have a Company Material Adverse Effect (as defined below)Effect. The Each of the Company and each Subsidiary set forth on Section 3.01(a) of its subsidiaries the Company Disclosure Schedule (each a “Material Subsidiary”) is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in such jurisdictions except where any such the failure to be so qualified or licensed or and in good standing would not, individually or in the aggregate, reasonably be expected to not have a Company Material Adverse Effect. The term “Company Material Adverse Effect” means any change, effect, event, circumstance, occurrence development, change or state of facts that effect that, individually or in the aggregate with all other events, circumstances, developments, changes and effects, (i) is materially adverse to (a) the business, operations, assets, condition (financial condition, or otherwise) or results of operations, assets or liabilities operations of the Company and its subsidiaries the Subsidiaries taken as a whole whole, (ii) has arisen out of the operations or relates directly to the assets of the Company or its Subsidiaries (and not the industry generally) and would reasonably be likely to be materially adverse to the business, operations, assets, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries, taken as a whole, or (biii) would reasonably be expected to prevent the Company’s ability to consummate consummation of the MergerMerger or prevent the Company from performing its obligations under this Agreement; provided, however, that, that in the case of the immediately preceding clause (a), none no event would any of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, be deemed to constitute, and none nor shall any of them shall the following be taken into account in determining whether there has been been, or could or would will be, a “Company Material Adverse Effect”: any event, circumstance, change or effect resulting from or relating to (iA) economic, a change in general economic or financial market, or geopolitical conditions in generalmarket conditions, (iiB) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national terrorism or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long asexcept, in the case of clauses (i), (ii), (ivA) and (viiB), to the extent such event, circumstance, change or effect has had a disproportionate effect on the Company and its subsidiaries, the Subsidiaries taken as a whole, is not disproportionate whole as compared to that on other companies persons in the industry in which the Company operatesand the Subsidiaries conduct their business), (C) the announcement of the execution of this Agreement or the pendency or consummation of the Merger, or (D) compliance with the terms of, or the taking of any action required by, this Agreement; provided, further, that solely with respect to the representations and warranties set forth in Section 3.05, the exceptions set forth in clauses (C) and (D) shall not apply.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sungard Data Systems Inc)
Organization and Qualification; Subsidiaries. The Company AIN is a ---------------------------------------------- corporation, and each of its AIN's subsidiaries (as such term is defined in Section ------- 9.03 herein) is a corporation duly organized, validly existing and in good ---- standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation and each of AIN and its subsidiaries has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on conduct its business as it is now being conductedconducted and is duly qualified and in good standing to do business in each jurisdiction in which the nature of the business conducted by it or the ownership or leasing of its properties makes such qualification necessary, except other than where any such the failure to be so organized, existing or duly qualified and in good standing or to have such power or authority would not, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a AIN Material Adverse Effect. “The term "AIN --- Material Adverse Effect” means " as used in this Agreement shall mean any change, effect, event, circumstance, occurrence change or state of facts ------------------------- effect that is would be materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the followingbusiness, or any changes, effects, events, circumstances, occurrence or state prospects of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, AIN taken as a whole, is at the time of such change or effect. Section 4.01 of the Disclosure Schedule delivered by AIN to ------------ HTV concurrently with the execution of this Agreement (the "AIN Disclosure -------------- Schedule") sets forth, as of the date of this Agreement, a true and complete -------- list of all the AIN's directly or indirectly owned subsidiaries which have not disproportionate to that on been previously disclosed, together with the jurisdiction of incorporation or organization of each such subsidiary and the percentage of each such subsidiary, outstanding capital stock or other companies in the industry in which the Company operatesequity interests owned by AIN or another subsidiary of AIN.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hispanic Television Network Inc)
Organization and Qualification; Subsidiaries. The Company Each of AGI and each subsidiary of its subsidiaries AGI (each, a "Subsidiary") is a corporation duly organizedincorporated, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation and has all the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any the lack of such failure to be so organizedpower, existing or in good standing or to have such power or authority and approval would not, individually or in the aggregate, reasonably be expected to have a an AGI Material Adverse Effect (as defined below). The Company Each of AGI and each of its subsidiaries Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities business makes such qualification or licensing necessary, other than in except for such jurisdictions where any such failure failures to be so qualified or licensed or and in good standing that would not, individually or in the aggregate, reasonably be expected to have a an AGI Material Adverse Effect. “The term "AGI Material Adverse Effect” " means any changecircumstances, effectchange in, eventor effect on, circumstancethe AGI Group (as defined in Section 9.03), occurrence when taken as a consolidated whole, or state of facts that is affecting the AGI Business (as defined in Section 9.03), which is, or could reasonably be expected in the future to be, materially adverse to (a) the business, financial condition, results of operations, assets AGI Group or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the MergerAGI Business; provided, however, thatthat any of such circumstances, in the case of the immediately preceding clause (a), none of the followingchanges in, or effects attributable to the failure of E&S to make any changes, effects, events, circumstances, occurrence or state deliveries of facts relating products to or resulting therefrom, AGI following the date hereof in accordance with the terms and specifications set forth in and required by contractual arrangements between E&S and AGI shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall not be taken into account in determining whether there has been or could or would be, be a "AGI Material Adverse Effect: (i) economic." A true and complete list of all the Subsidiaries, financial market, or geopolitical conditions in general, (ii) general changes or developments in together with the industries in which the Company and its subsidiaries operate, (iii) the announcement jurisdiction of this Agreement incorporation of each Subsidiary and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume percentage of the Company Common Stock (but the reasons or causes outstanding capital stock of such changes may constitute a Material Adverse Effect each Subsidiary owned by AGI and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a wholeeach other Subsidiary, is not disproportionate to that on other companies set forth in the industry in which the Company operates.Section 3.01
Appears in 1 contract
Samples: Agreement and Plan of Merger (Evans & Sutherland Computer Corp)
Organization and Qualification; Subsidiaries. The Each of the Company and each of its subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except except, in the case of any subsidiary of the Company, where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Each of the Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, business in each jurisdiction where the character of the its properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where except for any such failure to be so qualified or licensed or in good standing which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effecteffect or circumstance that is, eventor would reasonably be expected to be, circumstanceindividually or in the aggregate, occurrence or state of facts that is materially adverse to (a) the business, condition (financial condition, or otherwise) or results of operations, assets or liabilities operations of the Company and its subsidiaries taken as a whole whole, other than any change, effect or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or circumstance resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: from (i) changes in general economic, financial market, market or geopolitical conditions in generalconditions, (ii) general changes or developments in any of the industries in which the Company and or its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, including any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Company and its subsidiaries to the extent due to the announcement and performance of this Agreement or the identity of Parent, or the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein, (iv) any actions required under this Agreement to obtain any approval or authorization under applicable antitrust or competition laws for the consummation of the Merger, (v) changes in Tax any applicable laws or regulations or applicable accounting regulations or principles or interpretations thereof, (vvi) changes in any outbreak or escalation of hostilities or war or any act of terrorism, or (vii) any failure by the market price Company to meet any published analyst estimates or trading volume expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company Common Stock to meet its internal or published projections, budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but it being understood that the reasons facts or causes occurrences giving rise or contributing to such failure that are not otherwise excluded from the definition of such changes may constitute a “Material Adverse Effect and Effect” may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as; provided that, in the case of the immediately preceding clauses (i), (ii), (ivv) and (viivi), the effect on such changes, effects or circumstances do not affect the Company and or its subsidiaries, taken as a whole, is not disproportionate subsidiaries disproportionately relative to that on other similarly situated companies operating in the industry in which the Company operatessame industries.
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Company and -------------------------------------------- each of its subsidiaries Subsidiaries (as hereinafter defined) is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the its state or jurisdiction of its organization incorporation and has all requisite corporate or similar power and corporate authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, conducted and is in good standing, standing as a foreign corporation in each jurisdiction where the character of the properties owned, leased or operated operated, or the business conducted, by it or the nature of its activities makes require such qualification or licensing necessary, other than in such jurisdictions and where any such failure to be so qualified or licensed or in good standing or to so qualify would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect on the Company. “The term "Material Adverse Effect” Effect on the Company," as used in this Agreement, means any change, effect, event, circumstanceoccurrence, occurrence change or state of facts that that, individually or aggregated with other effects, events, occurrences, changes or states of facts, is, or is reasonably likely to be, materially adverse to (ai) the assets, liabilities, business, financial conditionproperty, results of operations, assets condition as a whole (financial or liabilities otherwise) of the Company and its subsidiaries Subsidiaries taken as a whole whole, or (bii) the Company’s ability of the Company to consummate perform its obligations under this Agreement. The Company has heretofore made available to Purchaser a complete and correct copy of its Articles of Incorporation, as amended, and By-Laws. The following is a list of every corporation, limited liability company, partnership or other business organization or entity of which the Merger; providedCompany owns either directly or through its Subsidiaries, however(a) more than 50% of (i) the total combined voting power of all classes of voting securities of such entity, that(ii) the total combined equity interests therein, or (iii) the capital or profit interests therein, in the case of a partnership; or (b) or otherwise has the immediately preceding clause (a), none power to vote or direct the voting of sufficient securities to elect a majority of the following, board of directors or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes similar governing body of such changes may constitute a Material Adverse Effect entity (the "Subsidiaries"): ICS Technologies, Inc., ICST, Inc., Integrated Circuit Systems PTE Ltd. and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)MicroClock, (vi) the failure, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies in the industry in which the Company operates.Inc.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Integrated Circuit Systems Inc)
Organization and Qualification; Subsidiaries. The Each of the Company and each of its subsidiaries is a corporation duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization incorporation and has all requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such the failure to be so organized, existing or and in good standing or to have such power or and authority would not, individually or not in the aggregate, reasonably be expected to aggregate have a Material Adverse Effect (as defined belowhereinafter defined). The Company and each of its subsidiaries is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the its properties owned, owned or leased or operated by it or the nature of its activities makes make such qualification or licensing necessary, other than in such jurisdictions where any such failure except for failures to be so qualified or licensed or in good standing which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” means any change, effect, event, circumstance, occurrence or state of facts that is materially adverse to (a) the business, financial condition, results of operations, assets or liabilities of the Company and its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, that, in the case of the immediately preceding clause (a), none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, shall be deemed in themselves, either alone or in combination, to constitute, and none of them shall be taken into account in determining whether there has been or could or would be, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes in the market price or trading volume of the Company Common Stock (but the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vi) not impair the failure, in and ability of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company perform its obligations hereunder in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account material respect. When used in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of connection with the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long as, in the case of clauses (i), (ii), (iv) and (vii)subsidiaries, the term "Material Adverse Effect" means any fact, event, change or effect having, or which could reasonably be expected to have, a material adverse effect on the business, properties, financial condition or results of operations of the Company and its subsidiaries, taken as a whole; PROVIDED, is not disproportionate HOWEVER, that facts, events, changes or effects that are applicable to that or arise on other companies account of (i) any changes in economic, regulatory or political conditions generally, (ii) this Agreement or the transactions contemplated hereby, (iii) the industry in of the Company generally or (iv) the effect of the public announcement of the transactions contemplated hereby, shall be excluded from the definition of "Material Adverse Effect" and from any determination as to whether a Material Adverse Effect has occurred or may occur. Section 4.01 of the Disclosure Schedule sets forth the name, jurisdiction of incorporation and percentages of outstanding capital stock owned, directly or indirectly, by the Company, with respect to each corporation of which the Company operatesowns, directly or indirectly, a majority of the outstanding capital stock. Except as disclosed in Section 4.01 of the Disclosure Schedule, all of the outstanding shares of capital stock of each of the Company's subsidiaries have been validly issued and are fully paid and nonassessable and are owned, directly or indirectly, by the Company, free and clear of any liens, pledges, security interests, claims, preemptive rights or other encumbrances (collectively, "Liens").
Appears in 1 contract
Samples: Agreement and Plan of Merger (Transportation Technologies Industries Inc)
Organization and Qualification; Subsidiaries. The Company Each of Parent and each of its subsidiaries is a corporation, limited partnership or limited liability company, duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization and incorporation or organization, has all requisite corporate corporate, limited partnership or similar limited liability company power and authority to own, lease and operate its properties and to carry on its business as it is now being conductedconducted and is duly qualified and in good standing to do business in each jurisdiction in which the nature of the business conducted by it or the ownership or leasing of its properties makes such qualification necessary, except other than where any such the failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, other than in such jurisdictions where any such failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to not have a Parent Material Adverse Effect. “The term "Parent Material Adverse Effect” means " as used in this Agreement shall mean any changechange or effect that, effectindividually or when taken together with all other such changes or effects, event, circumstance, occurrence or state of facts that is would be materially adverse to (a) the business, operations, assets, financial condition, or results of operations, assets or liabilities operations of the Company Parent and its subsidiaries subsidiaries, taken as a whole or (b) the Company’s ability to consummate the Mergerwhole; provided, however, that, in the case of the immediately preceding clause (a), that none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, following shall be deemed in themselves, either alone or in combination, and of themselves to constitute, and none of them the following shall be taken into account in determining whether there has been or could or would bebeen, a Parent Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes any change in the market price or trading volume of the Company Common Stock (but capital stock of the reasons or causes of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)Parent after the date hereof, (viii) the failure, suspension of trading in and of itself, by securities generally on the Company to meet any expected NYSE or projected financial the American Stock Exchange or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)NASDAQ National Market, (viiiii) acts of Godany adverse change, national event, development or international hostilities, war offset arising from or relating to (whether A) general business or not declared) or terrorism, economic conditions or (viiiB) general business or economic conditions relating to any litigation brought or threatened by industries in which the stockholders of the Company Parent or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of this Agreement or the transactions contemplated hereby, so long asparticipates, in each case which is not specific to the case of clauses (i), (ii), (iv) and (vii), the effect on the Company Parent and its subsidiaries, taken as a wholeand (iv) any adverse change, is not disproportionate to that on other companies in the industry in which the Company operates.event,
Appears in 1 contract
Organization and Qualification; Subsidiaries. The Each of the Company and each of its subsidiaries Subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its organization in which it is organized and has all the requisite corporate or similar power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in . Each of the aggregate, reasonably be expected to have a Material Adverse Effect (as defined below). The Company and each of its subsidiaries Subsidiaries is duly qualified or licensed to do business, business and is in good standing, standing in each jurisdiction where the character of the properties owned, leased or operated by it or in which the nature of its activities business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where any such the failure to be so qualified or licensed or in good standing would notlicensed, individually or in the aggregate, would not reasonably be expected to have a Material Adverse EffectEffect on the Company. “As used in this Agreement, "Material Adverse Effect” means " means, except as otherwise provided in Sections 7.02, 7.03 and 8.01(d)(i), any change, effect, event, circumstance, occurrence or state of facts (or any development that has had or is reasonably likely to have any change or effect) that is, individually or in the aggregate, materially adverse to (a) the business, property, assets, liabilities, financial condition, condition or results of operationsoperations of Parent or any of its Subsidiaries, assets in the case of Parent, or liabilities of the Company and or any of its subsidiaries taken as a whole or (b) the Company’s ability to consummate the Merger; provided, however, thatSignificant Subsidiaries, in the case of the immediately preceding clause (a)Company, or which would prevent or materially delay the consummation of the Transactions; provided, however, that none of the following, or any changes, effects, events, circumstances, occurrence or state of facts relating to or resulting therefrom, following shall be deemed in themselves, either alone or in combination, to constitute, and none of them the following shall be taken into account in determining whether there has been or could or would bebeen, a Material Adverse Effect: (i) economic, financial market, or geopolitical conditions in general, (ii) general changes or developments in the industries in which the Company and its subsidiaries operate, (iii) the announcement of this Agreement and the transactions contemplated hereby, (iv) changes in Tax laws or regulations or applicable accounting regulations or principles or interpretations thereof, (v) changes any adverse change in the market price or trading volume of the Company Common Stock (but the reasons or causes capital stock of such changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect)Person after the date hereof; provided, (vi) the failurehowever, in and of itself, by the Company to meet any expected or projected financial or operating performance target, as well as any change by the Company in any expected or projected financial or operating performance target (but the reasons or causes of such failures or changes may constitute a Material Adverse Effect and may be taken into account in determining whether there has been or could or would be a Material Adverse Effect), (vii) acts of God, national or international hostilities, war (whether or not declared) or terrorism, or (viii) any litigation brought or threatened by the stockholders of the Company or any of its non-wholly-owned subsidiaries (whether on behalf of the Company or such subsidiaries or otherwise) arising out of or in connection with the existence, announcement or performance of that this Agreement or the transactions contemplated hereby, so long as, in the case of clauses clause (i)) shall not exclude any underlying event, (ii)occurrence, (iv) and (vii), the effect on the Company and its subsidiaries, taken as a whole, is not disproportionate to that on other companies development or circumstance which may have caused such change in the industry in which the Company operates.stock price or
Appears in 1 contract
