Statements and Representations. In connection with the opinions to be rendered by each of you as provided in the Merger Agreement, and acknowledging that each of you will rely, with the consent of Company, upon the statements and representations made in this letter in rendering such opinion, Company hereby certifies and represents to each of you that the statements and representations made herein are true, correct and complete in all respects as of the Effective Time (as if made as of the Effective Time). 1. As pertains to the Company, the descriptions of the facts and documents contained in the S-4 and the Proxy Statement are true, correct and complete descriptions of such facts and documents in all material respects. 2. Company has entered into the Merger Agreement, and will effect the Merger, for good and valid business reasons. The fair market value of the Merger Consideration received by each stockholder of the Company will be approximately equal to the fair market value of Company Common Stock surrendered by such stockholder in the Merger. 3. In connection with the Merger, no holder of Company Common Stock will receive in exchange for Company Common Stock, directly or indirectly, any consideration other than Parent Common Stock or cash in lieu of a fractional share thereof. The Parent Common Stock into which Company Common Stock will be converted in the Merger will be entitled to vote in the election of directors of Parent and on all other matters put forth to the shareholders of Parent (“Parent Voting Common Stock”). Further, no liabilities of Company or of Company stockholders will be assumed by Parent in connection with the Merger, nor will any of the Company Common Stock be subject to any liabilities. 4. Immediately following the Merger, Parent will own shares of Company Common Stock representing control of Company. For purposes of this representation letter, “control” with respect to a corporation shall mean ownership of at least (i) 80 percent of the total combined voting power of all classes of stock entitled to vote and (ii) 80 percent of the total number of shares of each other class of stock of the corporation. 5. Company has no plan or intention to issue additional shares (or any options, warrants or other rights to acquire the beneficial or legal ownership of any shares of its stock) that would result in Parent losing control of Company after the Merger. 6. The payment of cash to holders of Company Common Stock in lieu of fractional shares of Parent Common Stock that would otherwise be issued to stockholders of Company in the Merger is solely for the purpose of avoiding the expense and inconvenience to Parent of issuing and transferring fractional shares of Parent Common Stock and does not represent separately bargained-for consideration. The total cash consideration that will be paid in the Merger to stockholders of Company instead of issuing fractional shares of Parent Common Stock will not exceed one percent of the total consideration that will be issued in the Merger to stockholders of Company in exchange for their shares of Company Common Stock. The fractional share interests of each stockholder of Company will be aggregated and no stockholder of Company will receive in the Merger cash in lieu of fractional shares in an amount equal to or greater than the value of one full share of Parent Common Stock, with the possible exception of stockholders of the Company whose holdings of Company Common Stock are in multiple accounts or with multiple brokers. 7. None of the cash received by the Company from the issuance of stock, or notes that were converted into stock, to Sub or any of Sub’s current or former direct or indirect owners was distributed or otherwise paid out to the stockholders of the Company. 8. Except for expenses incurred in connection with the filing, printing and mailing of the Information Statement/Prospectus (which will be shared equally by Parent and Company), Company has paid and will only pay its own expenses, if any, incurred in connection with the Merger, and Company has not agreed to assume any expenses or other liabilities, whether fixed or contingent, incurred or to be incurred, by any stockholder of Company in connection with or as part of the Merger or any related transactions. Notwithstanding the foregoing, to the extent that any transfer tax or other expense is a liability of a holder of Company stock; such liability will be paid either by such holder or by Company and in no event by Parent or Sub. 9. The only capital stock of Company issued and outstanding is Company Common Stock. At the time of the Merger, Company will not have outstanding any warrants, options, convertible securities or any other type of right which, if exercised or converted, would affect Parent’s acquisition or retention of control of Company. Company has not treated any stock, indebtedness, instrument or other contractual arrangement (other than Company Common Stock) as equity of, or a proprietary interest in, Company for U.S. federal income tax purposes. 10. Company operates at least one historic business or owns at least a significant portion of its historic business assets within the meaning of Treasury Regulation Section 1.368-1(d), and no assets of Company have been sold, transferred or otherwise disposed of which would prevent Company from continuing its historic business or from using a significant portion of its historic business assets in a business following the Merger. 11. Company will not as of the Effective Time, and has no plan or intent to, (i) elect, or have in effect an election, to be treated as a “regulated investment company” or as a “real estate investment trust” or file any tax return consistent with such treatment or (ii) be a corporation 50 percent or more of the fair market value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are held for investment. In making the determinations described in (ii) above, (x) the stock and securities of any subsidiary of Company shall be disregarded and Company shall be deemed to own its ratable share of such subsidiary’s assets and (y) a corporation shall be considered to be a subsidiary of Company if Company owns 50 percent or more of the combined voting power of all classes of the stock of such subsidiary that are entitled to vote, or 50 percent or more the total value of all classes of the outstanding stock of such subsidiary. In addition, in determining the fair market value of Company’s total assets for the purposes of making this representation, Company shall exclude any cash and cash items (such as receivables), government securities and, to the extent provided in the applicable Treasury regulations, any assets required (through incurring indebtedness or otherwise) for the purposes of causing Company to not be characterized as an entity described in (i) or (ii) of the first sentence of this paragraph or causing Company to meet the requirements of Section 368(a)(2)(F)(ii) of the Code. 12. There will be no dissenters in the Merger. 13. At the time of the Merger, the fair market value of the assets of Company will equal or exceed the sum of its liabilities plus (without duplication) the amount of liabilities, if any, to which Company’s assets are or will be subject. 14. Neither Company nor any corporation related to Company has purchased, redeemed or otherwise acquired, or made any distributions with respect to, any Company Common Stock prior to and in contemplation of the Merger, or otherwise as part of a plan of which the Merger is a part. For purposes of this representation letter, two corporations shall be treated as “related” to one another if immediately prior to or immediately after the Merger, (a) the corporations are members of the same affiliated group (within the meaning of Section 1504 of the Code, but determined without regard to Section 1504(b) of the Code) or (b) one corporation owns 50 percent or more of the total combined voting power of all classes of stock of the other corporation that are entitled to vote or 50 percent or more of the total value of all classes of stock of the other corporation (applying the attribution rules of Section 318 of the Code as modified pursuant to Section 304(c)(3)(B) of the Code) or (c) a purchase of the stock of one corporation by another corporation would be treated as a distribution in redemption of the stock of the first corporation under Section 304(a)(2) of the Code (determined without regard to Treasury Regulation Section 1.1502-80(b)). For purposes of this representation, a corporation that is a partner in a partnership will be treated as owning or acquiring any stock owned or acquired, as the case may be, by the partnership and as having furnished its share of any consideration furnished by the partnership to acquire the stock, in each case, in accordance with its interest in the partnership. 15. To the best knowledge of the management of Company, there is no plan or intention on the part of the stockholders of Company to sell, exchange or otherwise transfer ownership of (including by derivative transactions such as an equity swap which would have the economic effect of a transfer of ownership) any share of Parent Common Stock received in the Merger (other than fractional shares of Parent Common Stock for which Company stockholders receive cash in the Merger) to Parent, or to any corporation related to Parent, directly or indirectly, other than through open-market purchases of Parent Common Stock pursuant to a general stock repurchase program of Parent that has not been created or modified in connection with the Merger. 16. There is no inter-corporate indebtedness existing between Company (or any of its Subsidiaries) and Parent (or any of its Subsidiaries) or Sub that was issued or acquired, or will be settled, at a discount. 17. None of the compensation to be received by any stockholder-employees of Company represents separate consideration for, or will be allocable to, any of such stockholder-employee’s shares of Company Common Stock. None of the shares of Parent Common Stock to be received by any stockholder-employees of Company in connection with the Merger will be separate consideration for, or allocable to, any employment, consulting or similar agreement or arrangement. The compensation paid to any stockholder-employees of Company has been or will be for services actually rendered (or to be rendered) and will be commensurate with amounts paid to third parties bargaining at arm’s-length for similar services. No part of the Merger Consideration will be received by a stockholder of Company as a creditor, employee, or in any capacity other than as a stockholder of Company. 18. Company is not and will not be a debtor under the jurisdiction of a court in a case in a Title 11 or similar case. For purpose of the foregoing, a “Title 11 or similar case” means a case under Title 11 of the United States Code or a receivership, foreclosure or similar proceeding in a federal or state court. 19. Xxx Xxxxxx Xxxxxxxxx, X-0 and Proxy Statement and the other documents described in the S-4 and the Proxy Statement represent the entire understanding of Company, Sub and Parent with respect to the Merger. The terms of the Merger Agreement and all other agreements entered into in connection therewith are the product of arm’s length negotiations. 20. The undersigned is authorized to make all of the statements and representations set forth herein on behalf of Company.
Appears in 3 contracts
Samples: Merger Agreement (Micro Investment LLC), Merger Agreement (Ev3 Inc.), Merger Agreement (Micro Therapeutics Inc)
Statements and Representations. In connection with the opinions to be rendered by each of you as provided in the Merger Agreement, and acknowledging that each of you will rely, with the consent of CompanyParent and Sub, upon the statements and representations made in this letter in rendering such opinion, Company Parent and Sub hereby certifies certify and represents represent to each of you that the statements and representations made herein are true, correct and complete in all respects as of the Effective Time (as if made as of the Effective Time).
1. As pertains to the CompanyParent or Sub, the descriptions of the facts and documents contained in the S-4 and the Proxy Statement are true, correct and complete descriptions of such facts and documents in all material respects.
2. Company has Parent and Sub have entered into the Merger Agreement, and will effect the Merger, for good and valid business reasons. The fair market value of the Merger Consideration received by each stockholder of the Company will be approximately equal to the fair market value of Company Common Stock surrendered by such stockholder in the Merger.
3. In connection with the Merger, no holder of Company Common Stock will receive in exchange for Company Common Stock, directly or indirectly, any consideration other than Parent Common Stock or cash in lieu of a fractional share thereof. The Parent Common Stock into which received in exchange for the Company Common Stock will be converted in the Merger will be entitled to vote in the election of directors of Parent and on all other matters put forth submitted to the shareholders stockholders of Parent (“Parent Voting Common Stock”). Further, no liabilities of Company or of Company stockholders will be assumed by Parent in connection with the MergerParent, nor will any of the Company Common Stock be subject to any liabilities.
4. Immediately following the Merger, Parent will own shares of Company Common Stock representing control of Company. For purposes of this representation letter, “control” with respect to a corporation shall mean ownership of at least (i) 80 percent of the total combined voting power of all classes of stock entitled to vote and (ii) 80 percent of the total number of shares of each other class of stock of the corporation.
5. Company Parent has no present plan or intention to cause the Company to issue additional shares of its stock (or any options, warrants or other rights to acquire the beneficial or legal ownership of any shares of its stockstock of the Company) or otherwise take any action that would result in Parent losing control of Company after the MergerCompany.
6. The payment of cash to holders All shares of Company Common Stock in lieu of fractional shares of Parent Common Stock that would otherwise be issued to stockholders of Company in the Merger is solely for the purpose of avoiding the expense and inconvenience to Parent of issuing and transferring fractional shares of Parent Common Stock and does not represent separately bargained-for consideration. The total cash consideration that will be paid in the Merger to stockholders of Company instead of issuing fractional shares of Parent Common Stock will not exceed one percent of the total consideration that will be issued in the Merger to stockholders of Company in exchange for their shares of Company Common Stock. The fractional share interests of each stockholder of Company will be aggregated and no stockholder of Company will receive in the Merger cash in lieu of fractional shares in an amount equal to or greater than the value of one full share of Parent Common Stock, with the possible exception of stockholders of the Company whose holdings of Company Common Stock are in multiple accounts or with multiple brokers.
7. None of the cash received owned by the Company from the issuance Parent group of stockcorporations are owned by Sub, or notes that were converted into stock, to Sub or any of Sub’s current or former direct or indirect owners was distributed or otherwise paid out to the stockholders of the Company.
8. Except for expenses incurred in connection with the filing, printing and mailing of the Information Statement/Prospectus (which will be shared equally by Parent and Company), Company has paid and will only pay its own expenses, if any, incurred in connection with the Merger, and Company has not agreed to assume any expenses or other liabilities, whether fixed or contingent, incurred or to be incurred, by any stockholder of Company in connection with or as part of the Merger or any related transactions. Notwithstanding the foregoing, to the extent that any transfer tax or other expense is a liability of a holder of Company stock; such liability will be paid either by such holder or by Company and in no event by Parent or Sub.
9. The only capital stock of Company issued and outstanding is Company Common Stock. At the time of the Merger, Company will not have outstanding any warrants, options, convertible securities or any other type of right which, if exercised or converted, would affect Parent’s acquisition or retention of control of Company. Company has not treated any stock, indebtedness, instrument or other contractual arrangement (other than Company Common Stock) as equity of, or a proprietary interest in, Company disregarded entity for U.S. federal income tax purposes.
10. Company operates at least one historic business or owns at least a significant portion of its historic business assets within the meaning of Treasury Regulation Section 1.368-1(d), and no assets All shares of Company have been sold, transferred or otherwise disposed of which would prevent Company from continuing its historic business or from using a significant portion of its historic business assets in a business following the Merger.
11. Company will not as of the Effective Time, and has no plan or intent to, (i) elect, or have in effect an election, to be treated as a “regulated investment company” or as a “real estate investment trust” or file any tax return consistent with such treatment or (ii) be a corporation 50 percent or more of the fair market value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are held for investment. In making the determinations described in (ii) above, (x) the stock and securities of any subsidiary of Company shall be disregarded and Company shall be deemed to own its ratable share of such subsidiary’s assets and (y) a corporation shall be considered to be a subsidiary of Company if Company owns 50 percent or more of the combined voting power of all classes of the stock of such subsidiary that are entitled to vote, or 50 percent or more the total value of all classes of the outstanding stock of such subsidiary. In addition, in determining the fair market value of Company’s total assets for the purposes of making this representation, Company shall exclude any cash and cash items (such as receivables), government securities and, Common Stock owned by Parent prior to the extent provided Merger were acquired by Parent solely in the applicable Treasury regulations, any assets required (through incurring indebtedness or otherwise) exchange for the purposes of causing Company to not be characterized as an entity described in (i) or (ii) of the first sentence of this paragraph or causing Company to meet the requirements of Section 368(a)(2)(F)(ii) of the Code.
12Parent Voting Common Stock. There will be no dissenters Except for payments for fractional shares in the Merger.
13. At the time of the Merger, the fair market value of the assets of Company will equal or exceed the sum of its liabilities plus (without duplication) the amount of liabilities, if any, to which Company’s assets are or will be subject.
14. Neither Company neither Parent nor any corporation related to Company Parent (i) has purchased, redeemed purchased or otherwise acquired, or made any distributions with respect to, will purchase any Company Common Stock prior with consideration other than Parent Voting Common Stock, (ii) has acquired or will acquire any Company Common Stock for no consideration or (iii) has furnished or will furnish cash or other property directly or indirectly to and in contemplation stockholders of the Merger, or otherwise as part of a plan of which the Merger is a partCompany. For purposes of this representation letter, two corporations shall be treated as “related” to one another if immediately prior to or immediately after the Merger, (a) the corporations are members of the same affiliated group (within the meaning of Section 1504 of the Code, but determined without regard to Section 1504(b) of the Code) or (b) one corporation owns 50 percent or more of the total combined voting power of all classes of stock of the other corporation that are entitled to vote or 50 percent or more of the total value of all classes of stock of the other corporation (applying the attribution rules of Section 318 of the Code as modified pursuant to Section 304(c)(3)(B) of the Code) or (c) a purchase of the stock of one corporation by another corporation would be treated as a distribution in redemption of the stock of the first corporation under Section 304(a)(2) of the Code (determined without regard to Treasury Regulation Section 1.1502-80(b).
7. Sub currently owns (i) Company Common Stock that was purchased by Sub when it was owned by direct or indirect equity holders of Parent and (ii) Company Common Stock that was purchased by such direct or indirect equity holders of Parent. Sub owns no other Company Common Stock, and Parent otherwise owns no Company Common Stock. All of such Company Common Stock was originally acquired directly from the Company, and none of such Company Common Stock was purchased or otherwise acquired from third parties. Other than the acquisition by ev3 LLC described in paragraph 8 hereof, any acquisition of such Company Common Stock by any holder (including the acquisition of Company Common Stock by ev3 LLC by way of contribution upon ev3 LLC’s formation), was in each case for such holders’ own account, on their own behalf and with their own consideration, and was not made in connection with or in contemplation of the Merger or for the purpose of furthering Parent’s efforts to acquire Company Common Stock. Such holders were not under any obligation to surrender any Company Common Stock to Parent, Sub or any related entities and neither Parent, Sub nor any related entities was obligated to make and made no, reimbursement, directly or indirectly, to any such holder for the consideration that was used to acquire any Company Common Stock.
8. In addition to the contribution of Company Common Stock at the time of its formation, ev3 LLC acquired Company Common Stock at one other time, on May 26, 2005, in a contribution from two of its members. At such time, ev3 LLC and Parent had signed a merger agreement providing for the merger of ev3 LLC with and into Parent, signed as of the same date as the contribution agreement for the Company Common Stock, and the sole consideration for such merger was Parent Voting Common Stock.
9. The payment of cash to holders of Company Common Stock in lieu of fractional shares of Parent Common Stock that would otherwise be issued to stockholders of the Company in the Merger is solely for the purpose of avoiding the expense and inconvenience to Parent of issuing and transferring fractional shares of Parent Common Stock and does not represent separately bargained-for consideration. The total cash consideration that will be paid in the Merger to stockholders of the Company instead of issuing fractional shares of Parent Common Stock will not exceed one percent of the total consideration that will be issued in the Merger to stockholders of the Company in exchange for their shares of Company Common Stock. The fractional share interests of each stockholder of the Company will be aggregated and no stockholder of the Company will receive in the Merger cash in lieu of fractional shares in an amount equal to or greater than the value of one full share of Parent Common Stock, with the possible exception of stockholders of the Company whose holdings of Company Common Stock are in multiple accounts or with multiple brokers.
10. Parent has no present plan or intention following the Merger: (i) to liquidate the Company; (ii) to merge the Company with or into another corporation; (iii) to sell or otherwise dispose of the stock of the Company except for transfers of stock to one or more corporations in which the transferor is in control or (iv) to cause the Company to sell or otherwise dispose of any of its assets or any assets acquired from Sub, except for (A) dispositions made in the ordinary course of business or (B) transfers to one or more corporations in which the transferor is in control. For purposes of this representation, “to dispose” of stock or assets means to sell, exchange, contribute, distribute or otherwise transfer such stock or assets to any person or entity.
11. Neither Parent, nor any corporation related to Parent, has any plan, intention, obligation, agreement or understanding to, and will not in connection with the Merger, directly or indirectly, purchase, redeem or otherwise acquire any Parent Common Stock that will be issued pursuant to the Merger. For purposes of this representation, a corporation that is a partner in a partnership will be treated as owning or acquiring any stock owned or acquired, as the case may be, by the partnership and as having furnished its share of any consideration furnished by the partnership to acquire the stock, in each case, in accordance with its interest in the partnership.
1512. To After the best knowledge of Merger, no dividends or distributions will be made to the management of Companyformer Company stockholders by Parent other than regular, there is no plan normal dividends or intention on the part of the stockholders of Company distributions made to sell, exchange or otherwise transfer ownership of (including by derivative transactions such as an equity swap which would have the economic effect of a transfer of ownership) any share all holders of Parent Common Stock received Stock.
13. Except for expenses incurred in connection with the filing, printing and mailing of the S-4 and Proxy Statement (which will be shared equally by Parent and Company), Parent or Sub has paid and will pay the expenses, if any, incurred by Parent or Sub in connection with the Merger (other than fractional shares of and neither Parent Common Stock for which Company stockholders receive cash in the Merger) nor Sub has agreed to Parentassume, or to any corporation related to Parentwill assume, directly or indirectly, any expense or other than through open-market purchases liability, whether fixed or contingent, of Parent the Company or any holder of Company Common Stock pursuant to a general stock repurchase program of Parent that has not been created or modified in connection with or as part of the Merger or any related transaction.
14. Following the Merger, Parent will cause the Company or another member of Parent’s qualified group to continue the historic business of the Company or use a significant portion of the Company’s historic business assets in a business, within the meaning of Treasury Regulation Section 1.368-1(d). For purposes of this representation, Parent’s “qualified group” means one or more chains of corporations connected through stock ownership with Parent, but only if Parent owns directly stock representing control in at least one other corporation, and stock representing control in each of the corporations (except Parent) is owned directly by one of the other corporations. In addition, Parent will be treated as owning its proportionate share of the Company’s business assets used in a business of any partnership in which members of Parent’s qualified group either own a significant interest or have active and substantial management functions as a partner with respect to that partnership business (as described in Treasury Regulation Section 1.368-1(d)(4)(iii)(B)).
15. Parent will not (i) elect, or have in effect an election, to be treated as a “regulated investment company” or as a “real estate investment trust” or file any tax return consistent with such treatment or (ii) be a corporation 50 percent or more of the fair market value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are held for investment. In making the determinations described in (ii) above, (x) the stock and securities of any subsidiary of Parent shall be disregarded and Parent shall be deemed to own its ratable share of such subsidiary’s assets and (y) a corporation shall be considered to be a subsidiary of Parent if Parent owns 50 percent or more of the combined voting power of all classes of the stock of such subsidiary that are entitled to vote, or 50 percent or more the total value of all classes of the outstanding stock of such subsidiary. In addition, in determining the fair market value of Parent’s total assets for the purposes of making this representation, Parent shall exclude any cash and cash items (such as receivables), government securities and, to the extent provided in the applicable Treasury regulations, any assets required (through incurring indebtedness or otherwise) for the purposes of causing Parent to not be characterized as an entity described in (i) or (ii) of the first sentence of this paragraph or causing Parent to meet the requirements of Section 368(a)(2)(F)(ii) of the Code.
16. There is no inter-corporate indebtedness existing between Company (will pay all damages assessed against it, if any, relating to any lawsuit or any of its Subsidiaries) and Parent (or any of its Subsidiaries) or Sub that was issued or acquired, or will be settled, at a discount.
17. None of the compensation to be received other action brought against it by any stockholder-employees of Company represents separate consideration for, or will be allocable to, any of such stockholder-employee’s shares holders of Company Common Stock. None Stock out of the shares of Parent Common Stock to be received by any stockholder-employees of Company in connection with the Merger will be separate consideration for, or allocable to, any employment, consulting or similar agreement or arrangement. The compensation paid to any stockholder-employees of Company has been or will be for services actually rendered (or to be rendered) and will be commensurate with amounts paid to third parties bargaining at arm’s-length for similar services. No part of the Merger Consideration will be received by a stockholder of Company as a creditor, employee, or in any capacity other than as a stockholder of Company.
18. Company is not and will not be a debtor under the jurisdiction of a court in a case in a Title 11 or similar case. For purpose of the foregoing, a “Title 11 or similar case” means a case under Title 11 of the United States Code or a receivership, foreclosure or similar proceeding in a federal or state court.
19. Xxx Xxxxxx Xxxxxxxxx, X-0 and Proxy Statement and the other documents described in the S-4 and the Proxy Statement represent the entire understanding of Company, Sub and Parent with respect to the Merger. The terms of the Merger Agreement and all other agreements entered into in connection therewith are the product of arm’s length negotiations.
20. The undersigned is authorized to make all of the statements and representations set forth herein on behalf of Company.its own
Appears in 2 contracts
Samples: Merger Agreement (Micro Investment LLC), Merger Agreement (Ev3 Inc.)
Statements and Representations. In connection with the opinions to be rendered by each of you as provided in the Merger Agreementsuch opinions, and acknowledging that each of you will rely, with the consent of Company’s consent, upon the statements and representations made in this letter in rendering such opinion, the Company hereby certifies and represents to each of you that the statements and representations made herein as they relate to the Company are true, correct and complete in all respects at the date hereof and will be true, correct and complete in all respects as of the Effective Time (as if made as of the Effective Time).):
1. As pertains to the Company, the descriptions of the facts and documents contained in the S-4 and the Proxy Statement are true, correct and complete descriptions of such facts and documents in all material respects.
2. Company has entered into the Merger Agreement, and will effect the Merger, for good and valid business reasons. The fair market value of the Merger Consideration Parent Common Stock and cash in lieu of fractional shares of Parent Common Stock received by each stockholder holders of the Company Common Stock (“Company Stockholders”) other than Parent will be approximately equal to the fair market value of the Company Common Stock surrendered by such stockholder Company Stockholders in the Merger.
3. In connection with the Merger, no holder of Company Common Stock Stockholder will receive in exchange for Company Common Stock, directly or indirectly, any consideration from Parent (or Merger Sub) other than Parent Common Stock or and cash in lieu of a fractional share thereof. The Parent Common Stock into which Company Common Stock will be converted in the Merger will be entitled to vote in the election of directors of Parent and on all other matters put forth to the shareholders of Parent (“Parent Voting Common Stock”). Further, no liabilities of Company or of Company stockholders will be assumed by Parent in connection with the Merger, nor will any of the Company Common Stock be subject to any liabilities.
4. Immediately following the Merger, Parent will own shares of Company Common Stock representing control of Company. For purposes of this representation letter, “control” with respect to a corporation shall mean ownership of at least (i) 80 percent of the total combined voting power of all classes of stock entitled to vote and (ii) 80 percent of the total number of shares of each other class of stock of the corporation.
5. Company has no plan or intention to issue additional shares (or any options, warrants or other rights to acquire the beneficial or legal ownership of any shares of its stock) that would result in Parent losing control of Company after the Merger.
6. The payment of cash to holders of Company Common Stock in lieu of fractional shares of Parent Common Stock that would otherwise be issued to stockholders of Company in the Merger is solely for the purpose of avoiding the expense and inconvenience to Parent of issuing and transferring fractional shares of Parent Common Stock and does not represent separately bargained-for consideration. The total cash consideration that will be paid in the Merger to stockholders of Company instead of issuing fractional shares of Parent Common Stock will not exceed one percent of the total consideration that will be issued in the Merger to stockholders of Company in exchange for their shares of Company Common Stock. The fractional share interests of each stockholder of Company will be aggregated and no stockholder of Company will receive in the Merger cash in lieu of fractional shares in an amount equal to or greater than the value of one full share of Parent Common Stock, with the possible exception of stockholders of the Company whose holdings of Company Common Stock are in multiple accounts or with multiple brokers.
72. None of the cash received by the Company from the issuance of stockAny dispositions, or notes that were converted into stock, to Sub or any of Sub’s current or former direct or indirect owners was distributed or otherwise paid out to the stockholders of the Company.
8. Except for expenses incurred in connection with the filing, printing and mailing of the Information Statement/Prospectus (which will be shared equally by Parent and Company), Company has paid and will only pay its own expenses, if any, incurred in connection with the Merger, and Company has not agreed to assume any expenses or other liabilities, whether fixed or contingent, incurred or to be incurred, by any stockholder of Company in connection with contemplation or as part of the Merger Merger, of assets held by the Company will be (or have been) for full fair market value.
3. Neither the Company nor any person related transactions. Notwithstanding the foregoing, to the extent that any transfer tax or other expense is a liability of a holder of Company stock; such liability will be paid either by such holder or by Company and in no event by Parent or Sub.
9. The only capital stock of Company issued and outstanding is Company Common Stock. At the time of the Merger, Company will not have outstanding any warrants, options, convertible securities or any other type of right which, if exercised or converted, would affect Parent’s acquisition or retention of control of Company. Company has not treated any stock, indebtedness, instrument or other contractual arrangement (other than Company Common Stock) as equity of, or a proprietary interest in, Company for U.S. federal income tax purposes.
10. Company operates at least one historic business or owns at least a significant portion of its historic business assets within the meaning of Treasury Regulation Section Sections 1.368-1(d1(e)(3), (e)(4), and no assets (e)(5) (other than Parent, by virtue of Company have been sold, transferred stock acquisitions in 2003 or otherwise disposed of which would prevent Company from continuing its historic business or from using a significant portion of its historic business assets in a business following pursuant to the Merger.
11. Company will not as of the Effective Time, and has no plan or intent to, (i) elect, or have in effect an election, to be treated as a “regulated investment company” or as a “real estate investment trust” or file any tax return consistent with such treatment or (ii) be a corporation 50 percent or more of the fair market value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are held for investment. In making the determinations described in (ii) above, (x) the stock and securities of any subsidiary of Company shall be disregarded and Company shall be deemed to own its ratable share of such subsidiary’s assets and (y) a corporation shall be considered to be a subsidiary of Company if Company owns 50 percent or more of the combined voting power of all classes of the stock of such subsidiary that are entitled to vote, or 50 percent or more the total value of all classes of the outstanding stock of such subsidiary. In addition, in determining the fair market value of Company’s total assets for the purposes of making this representation, Company shall exclude any cash and cash items (such as receivables), government securities and, to the extent provided in the applicable Treasury regulations, any assets required (through incurring indebtedness or otherwise) for the purposes of causing Company to not be characterized as an entity described in (i) or (ii) of the first sentence of this paragraph or causing Company to meet the requirements of Section 368(a)(2)(F)(ii) of the Code.
12. There will be no dissenters in the Merger.
13. At the time of the Merger, the fair market value of the assets of Company will equal or exceed the sum of its liabilities plus (without duplication) the amount of liabilities, if any, to which Company’s assets are or will be subject.
14. Neither Company nor any corporation related to Company has purchased, redeemed or otherwise acquired, or made any distributions with respect to, any Company Common Stock prior to and or in contemplation of the Merger, or otherwise as part of a plan of which the Merger is a part.
4. For purposes The liabilities of this representation letterthe Company assumed by the Surviving Entity and the liabilities to which the assets of the Company are subject were incurred by the Company in the ordinary course of its business.
5. The business currently carried on by the Company is its “historic business” within the meaning of Treasury Regulation Section 1.368-1(d), two corporations shall be treated as and no assets of the Company have been sold, transferred or otherwise disposed of which would prevent Parent or the Surviving Entity from continuing the “relatedhistoric business” to one another if immediately prior to of the Company or immediately after from using a “significant portion” of the Company’s “historic business assets” in a business following the Merger, (a) the corporations as such terms are members used in Treasury Regulations Section 1.368-1(d).
6. Except as provided in Sections 8.2 and 8.5 of the same affiliated group Agreement, the Company and each Company Stockholder has paid and will pay only their respective expenses, if any, incurred in connection with the Merger, and the Company has not agreed to assume, and will not either directly or indirectly assume, any expense or other liability, whether fixed or contingent, of any Company Stockholder.
7. There is no intercorporate indebtedness existing between Parent and the Company or between Merger Sub and the Company that was issued, acquired, or will be settled at a discount.
8. The Company is not an “investment company” as defined in Sections 368(a)(2)(F)(iii) and (iv) of the Code.
9. The Company is not under the jurisdiction of a court in a title 11 or similar case within the meaning of Section 1504 of the Code, but determined without regard to Section 1504(b368(a)(3)(A) of the Code) or (b) one corporation owns 50 percent or more of the total combined voting power of all classes of stock of the other corporation that are entitled to vote or 50 percent or more of the total value of all classes of stock of the other corporation (applying the attribution rules of Section 318 of the Code as modified pursuant to Section 304(c)(3)(B) of the Code) or (c) a purchase of the stock of one corporation by another corporation would be treated as a distribution in redemption of the stock of the first corporation under Section 304(a)(2) of the Code (determined without regard to Treasury Regulation Section 1.1502-80(b)). For purposes of this representation, a corporation that is a partner in a partnership will be treated as owning or acquiring any stock owned or acquired, as the case may be, by the partnership and as having furnished its share of any consideration furnished by the partnership to acquire the stock, in each case, in accordance with its interest in the partnership.
1510. To the best knowledge of the management of Company, there is no plan or intention on the part of the stockholders of Company to sell, exchange or otherwise transfer ownership of (including by derivative transactions such as an equity swap which would have the economic effect of a transfer of ownership) any share of Parent Common Stock received The issuance in the Merger (other than of cash in lieu of fractional shares of Parent Common Stock represents a mere mechanical rounding off solely for which Company stockholders receive the purpose of avoiding the expense and inconvenience to Parent of issuing fractional shares and does not represent separately bargained-for consideration. The total cash consideration that will be in the Merger) to Parent, or to any corporation related to Parent, directly or indirectly, other than through open-market purchases lieu of issuing fractional shares of Parent Common Stock will not exceed [one] percent ([1]%) of the total consideration that will be issued pursuant to a general stock repurchase program the Agreement to the Stockholders in exchange for their Company Common Stock. The fractional share interests of each Company Stockholder will be aggregated, and no Company Stockholder, with the possible exception of Company Stockholders whose holdings are in multiple accounts or with multiple brokers, will receive cash in an amount equal to or greater than the value of one full share of Parent that has not been created or modified in connection with Common Stock valued at the MergerParent Closing Price.
1611. There is no inter-corporate indebtedness existing between Company To the knowledge of the Company, (or any of its Subsidiariesi) and Parent (or any of its Subsidiaries) or Sub that was issued or acquired, or will be settled, at a discount.
17. None none of the compensation to be received by any stockholder-employees of the Company represents separate consideration for, or will be allocable to, any of such stockholder-employee’s shares of Company Common Stock. None of the shares of Parent Common Stock to be received by any stockholder-employees of Company in connection with the Merger will be separate consideration for, or allocable to, any employment, consulting of the Company Common Stock held by such stockholder-employee; (ii) none of the Parent Common Stock received by any stockholder-employees will be consideration for services or similar agreement or allocable to any employment arrangement. The ; and (iii) the compensation paid to any stockholder-employees of Company has been by Parent or by the Surviving Entity following the Merger will be for services actually rendered (or to be rendered) and will be commensurate with amounts that would be paid to third parties bargaining at arm’s-length for similar services.
12. No part In the Merger, the Company will transfer all of its assets and liabilities to Merger Sub, and the Company will cease its separate legal existence for all purposes.
13. The Company has a bona fide business reason for engaging in the Merger.
14. The fair market value of the Merger Consideration Company’s assets that will be received transferred to Merger Sub in the Merger will equal or exceed the sum of the liabilities that will be assumed by a stockholder Merger Sub plus the amount of Company as a creditorliabilities, employeeif any, or in any capacity other than as a stockholder of Companyto which the transferred assets will be subject.
1815. At the Effective Time, there will be no accrued but unpaid dividends on the Company is not and will not be a debtor under the jurisdiction of a court in a case in a Title 11 or similar case. For purpose of the foregoing, a “Title 11 or similar case” means a case under Title 11 of the United States Code or a receivership, foreclosure or similar proceeding in a federal or state courtStock.
19. Xxx Xxxxxx Xxxxxxxxx, X-0 and Proxy Statement and the other documents described in the S-4 and the Proxy Statement represent the entire understanding of Company, Sub and Parent with respect to the Merger16. The terms of the Merger Agreement and all other agreements entered into in connection therewith are the product of arm’s length negotiations.
2017. The Merger will be consummated in compliance with the terms of the Agreement, none of the material terms and conditions therein has been waived or modified, and the Company has no plan or intention to waive or modify any such terms or conditions.
18. The Company is not aware of any facts or circumstances that would cause the Merger to fail to qualify as a reorganization within the meaning of Section 368(a) of the Code.
19. The undersigned is are authorized to make all of the statements and representations set forth herein on behalf of Companyherein.
Appears in 1 contract
Samples: Merger Agreement (Amgen Inc)
Statements and Representations. In connection with the opinions to be rendered by each of you as provided in the Merger Agreement, and acknowledging that each of you will rely, with the consent of CompanyParent and Sub, upon the statements and representations made in this letter in rendering such opinion, Company Parent and Sub hereby certifies certify and represents represent to each of you that the statements and representations made herein are true, correct and complete in all respects as of the Effective Time (as if made as of the Effective Time).
1. As pertains to the CompanyParent or Sub, the descriptions of the facts and documents contained in the S-4 and the Proxy Statement are true, correct and complete descriptions of such facts and documents in all material respects.
2. Company has Parent and Sub have entered into the Merger Agreement, and will effect the Merger, for good and valid business reasons. The fair market value of the Merger Consideration received by each stockholder of the Company will be approximately equal to the fair market value of Company Common Stock surrendered by such stockholder in the Merger.
3. In connection with the Merger, no holder of Company Common Stock will receive in exchange for Company Common Stock, directly or indirectly, any consideration other than Parent Common Stock or cash in lieu of a fractional share thereof. The Parent Common Stock into which received in exchange for the Company Common Stock will be converted in the Merger will be entitled to vote in the election of directors of Parent and on all other matters put forth submitted to the shareholders stockholders of Parent (“Parent Voting Common Stock”). Further, no liabilities of Company or of Company stockholders will be assumed by Parent in connection with the MergerParent, nor will any of the Company Common Stock be subject to any liabilities.
4. Immediately following the Merger, Parent will own shares of Company Common Stock representing control of Company. For purposes of this representation letter, “control” with respect to a corporation shall mean ownership of at least (i) 80 percent of the total combined voting power of all classes of stock entitled to vote and (ii) 80 percent of the total number of shares of each other class of stock of the corporation.
5. Company Parent has no present plan or intention to cause the Company to issue additional shares of its stock (or any options, warrants or other rights to acquire the beneficial or legal ownership of any shares of its stockstock of the Company) or otherwise take any action that would result in Parent losing control of Company after the MergerCompany.
6. The payment of cash to holders All shares of Company Common Stock in lieu of fractional shares of Parent Common Stock that would otherwise be issued to stockholders of Company in the Merger is solely for the purpose of avoiding the expense and inconvenience to Parent of issuing and transferring fractional shares of Parent Common Stock and does not represent separately bargained-for consideration. The total cash consideration that will be paid in the Merger to stockholders of Company instead of issuing fractional shares of Parent Common Stock will not exceed one percent of the total consideration that will be issued in the Merger to stockholders of Company in exchange for their shares of Company Common Stock. The fractional share interests of each stockholder of Company will be aggregated and no stockholder of Company will receive in the Merger cash in lieu of fractional shares in an amount equal to or greater than the value of one full share of Parent Common Stock, with the possible exception of stockholders of the Company whose holdings of Company Common Stock are in multiple accounts or with multiple brokers.
7. None of the cash received owned by the Company from the issuance Parent group of stockcorporations are owned by Sub, or notes that were converted into stock, to Sub or any of Sub’s current or former direct or indirect owners was distributed or otherwise paid out to the stockholders of the Company.
8. Except for expenses incurred in connection with the filing, printing and mailing of the Information Statement/Prospectus (which will be shared equally by Parent and Company), Company has paid and will only pay its own expenses, if any, incurred in connection with the Merger, and Company has not agreed to assume any expenses or other liabilities, whether fixed or contingent, incurred or to be incurred, by any stockholder of Company in connection with or as part of the Merger or any related transactions. Notwithstanding the foregoing, to the extent that any transfer tax or other expense is a liability of a holder of Company stock; such liability will be paid either by such holder or by Company and in no event by Parent or Sub.
9. The only capital stock of Company issued and outstanding is Company Common Stock. At the time of the Merger, Company will not have outstanding any warrants, options, convertible securities or any other type of right which, if exercised or converted, would affect Parent’s acquisition or retention of control of Company. Company has not treated any stock, indebtedness, instrument or other contractual arrangement (other than Company Common Stock) as equity of, or a proprietary interest in, Company disregarded entity for U.S. federal income tax purposes.
10. Company operates at least one historic business or owns at least a significant portion of its historic business assets within the meaning of Treasury Regulation Section 1.368-1(d), and no assets All shares of Company have been sold, transferred or otherwise disposed of which would prevent Company from continuing its historic business or from using a significant portion of its historic business assets in a business following the Merger.
11. Company will not as of the Effective Time, and has no plan or intent to, (i) elect, or have in effect an election, to be treated as a “regulated investment company” or as a “real estate investment trust” or file any tax return consistent with such treatment or (ii) be a corporation 50 percent or more of the fair market value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are held for investment. In making the determinations described in (ii) above, (x) the stock and securities of any subsidiary of Company shall be disregarded and Company shall be deemed to own its ratable share of such subsidiary’s assets and (y) a corporation shall be considered to be a subsidiary of Company if Company owns 50 percent or more of the combined voting power of all classes of the stock of such subsidiary that are entitled to vote, or 50 percent or more the total value of all classes of the outstanding stock of such subsidiary. In addition, in determining the fair market value of Company’s total assets for the purposes of making this representation, Company shall exclude any cash and cash items (such as receivables), government securities and, Common Stock owned by Parent prior to the extent provided Merger were acquired by Parent solely in the applicable Treasury regulations, any assets required (through incurring indebtedness or otherwise) exchange for the purposes of causing Company to not be characterized as an entity described in (i) or (ii) of the first sentence of this paragraph or causing Company to meet the requirements of Section 368(a)(2)(F)(ii) of the Code.
12Parent Voting Common Stock. There will be no dissenters Except for payments for fractional shares in the Merger.
13. At the time of the Merger, the fair market value of the assets of Company will equal or exceed the sum of its liabilities plus (without duplication) the amount of liabilities, if any, to which Company’s assets are or will be subject.
14. Neither Company neither Parent nor any corporation related to Company Parent (i) has purchased, redeemed purchased or otherwise acquired, or made any distributions with respect to, will purchase any Company Common Stock prior with consideration other than Parent Voting Common Stock, (ii) has acquired or will acquire any Company Common Stock for no consideration or (iii) has furnished or will furnish cash or other property directly or indirectly to and in contemplation stockholders of the Merger, or otherwise as part of a plan of which the Merger is a partCompany. For purposes of this representation letter, two corporations shall be treated as “related” to one another if immediately prior to or immediately after the Merger, (a) the corporations are members of the same affiliated group (within the meaning of Section 1504 of the Code, but determined without regard to Section 1504(b) of the Code) or (b) one corporation owns 50 percent or more of the total combined voting power of all classes of stock of the other corporation that are entitled to vote or 50 percent or more of the total value of all classes of stock of the other corporation (applying the attribution rules of Section 318 of the Code as modified pursuant to Section 304(c)(3)(B) of the Code) or (c) a purchase of the stock of one corporation by another corporation would be treated as a distribution in redemption of the stock of the first corporation under Section 304(a)(2) of the Code (determined without regard to Treasury Regulation Section 1.1502-80(b).
7. Sub currently owns (i) Company Common Stock that was purchased by Sub when it was owned by direct or indirect equity holders of Parent and (ii) Company Common Stock that was purchased by such direct or indirect equity holders of Parent. Sub owns no other Company Common Stock, and Parent otherwise owns no Company Common Stock. All of such Company Common Stock was originally acquired directly from the Company, and none of such Company Common Stock was purchased or otherwise acquired from third parties. Other than the acquisition by ev3 LLC described in paragraph 8 hereof, any acquisition of such Company Common Stock by any holder (including the acquisition of Company Common Stock by ev3 LLC by way of contribution upon ev3 LLC’s formation), was in each case for such holders’ own account, on their own behalf and with their own consideration, and was not made in connection with or in contemplation of the Merger or for the purpose of furthering Parent’s efforts to acquire Company Common Stock. Such holders were not under any obligation to surrender any Company Common Stock to Parent, Sub or any related entities and neither Parent, Sub nor any related entities was obligated to make and made no, reimbursement, directly or indirectly, to any such holder for the consideration that was used to acquire any Company Common Stock.
8. In addition to the contribution of Company Common Stock at the time of its formation, ev3 LLC acquired Company Common Stock at one other time, on May 26, 2005, in a contribution from two of its members. At such time, ev3 LLC and Parent had signed a merger agreement providing for the merger of ev3 LLC with and into Parent, signed as of the same date as the contribution agreement for the Company Common Stock, and the sole consideration for such merger was Parent Voting Common Stock.
9. The payment of cash to holders of Company Common Stock in lieu of fractional shares of Parent Common Stock that would otherwise be issued to stockholders of the Company in the Merger is solely for the purpose of avoiding the expense and inconvenience to Parent of issuing and transferring fractional shares of Parent Common Stock and does not represent separately bargained-for consideration. The total cash consideration that will be paid in the Merger to stockholders of the Company instead of issuing fractional shares of Parent Common Stock will not exceed one percent of the total consideration that will be issued in the Merger to stockholders of the Company in exchange for their shares of Company Common Stock. The fractional share interests of each stockholder of the Company will be aggregated and no stockholder of the Company will receive in the Merger cash in lieu of fractional shares in an amount equal to or greater than the value of one full share of Parent Common Stock, with the possible exception of stockholders of the Company whose holdings of Company Common Stock are in multiple accounts or with multiple brokers.
10. Parent has no present plan or intention following the Merger: (i) to liquidate the Company; (ii) to merge the Company with or into another corporation; (iii) to sell or otherwise dispose of the stock of the Company except for transfers of stock to one or more corporations in which the transferor is in control or (iv) to cause the Company to sell or otherwise dispose of any of its assets or any assets acquired from Sub, except for (A) dispositions made in the ordinary course of business or (B) transfers to one or more corporations in which the transferor is in control. For purposes of this representation, “to dispose” of stock or assets means to sell, exchange, contribute, distribute or otherwise transfer such stock or assets to any person or entity.
11. Neither Parent, nor any corporation related to Parent, has any plan, intention, obligation, agreement or understanding to, and will not in connection with the Merger, directly or indirectly, purchase, redeem or otherwise acquire any Parent Common Stock that will be issued pursuant to the Merger. For purposes of this representation, a corporation that is a partner in a partnership will be treated as owning or acquiring any stock owned or acquired, as the case may be, by the partnership and as having furnished its share of any consideration furnished by the partnership to acquire the stock, in each case, in accordance with its interest in the partnership.
1512. To After the best knowledge of Merger, no dividends or distributions will be made to the management of Companyformer Company stockholders by Parent other than regular, there is no plan normal dividends or intention on the part of the stockholders of Company distributions made to sell, exchange or otherwise transfer ownership of (including by derivative transactions such as an equity swap which would have the economic effect of a transfer of ownership) any share all holders of Parent Common Stock received Stock.
13. Except for expenses incurred in connection with the filing, printing and mailing of the S-4 and Proxy Statement (which will be shared equally by Parent and Company), Parent or Sub has paid and will pay the expenses, if any, incurred by Parent or Sub in connection with the Merger (other than fractional shares of and neither Parent Common Stock for which Company stockholders receive cash in the Merger) nor Sub has agreed to Parentassume, or to any corporation related to Parentwill assume, directly or indirectly, any expense or other than through open-market purchases liability, whether fixed or contingent, of Parent the Company or any holder of Company Common Stock pursuant to a general stock repurchase program of Parent that has not been created or modified in connection with or as part of the Merger or any related transaction.
14. Following the Merger, Parent will cause the Company or another member of Parent’s qualified group to continue the historic business of the Company or use a significant portion of the Company’s historic business assets in a business, within the meaning of Treasury Regulation Section 1.368-1(d). For purposes of this representation, Parent’s “qualified group” means one or more chains of corporations connected through stock ownership with Parent, but only if Parent owns directly stock representing control in at least one other corporation, and stock representing control in each of the corporations (except Parent) is owned directly by one of the other corporations. In addition, Parent will be treated as owning its proportionate share of the Company’s business assets used in a business of any partnership in which members of Parent’s qualified group either own a significant interest or have active and substantial management functions as a partner with respect to that partnership business (as described in Treasury Regulation Section 1.368-1(d)(4)(iii)(B)).
15. Parent will not (i) elect, or have in effect an election, to be treated as a “regulated investment company” or as a “real estate investment trust” or file any tax return consistent with such treatment or (ii) be a corporation 50 percent or more of the fair market value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are held for investment. In making the determinations described in (ii) above, (x) the stock and securities of any subsidiary of Parent shall be disregarded and Parent shall be deemed to own its ratable share of such subsidiary’s assets and (y) a corporation shall be considered to be a subsidiary of Parent if Parent owns 50 percent or more of the combined voting power of all classes of the stock of such subsidiary that are entitled to vote, or 50 percent or more the total value of all classes of the outstanding stock of such subsidiary. In addition, in determining the fair market value of Parent’s total assets for the purposes of making this representation, Parent shall exclude any cash and cash items (such as receivables), government securities and, to the extent provided in the applicable Treasury regulations, any assets required (through incurring indebtedness or otherwise) for the purposes of causing Parent to not be characterized as an entity described in (i) or (ii) of the first sentence of this paragraph or causing Parent to meet the requirements of Section 368(a)(2)(F)(ii) of the Code.
16. Company will pay all damages assessed against it, if any, relating to any lawsuit or other action brought against it by holders of Company Common Stock out of its own funds. No funds will be supplied for this purpose, directly or indirectly, by Parent, nor will Parent directly or indirectly reimburse the Company for any such payment made by the Company.
17. There will be no dissenters in the Merger.
1618. Prior to and through the time of the Merger, Parent will own all of the outstanding equity interests of Sub and Sub will not have issued any options, warrants or similar rights to acquire the beneficial or legal ownership of any of its equity interests.
19. There is no inter-corporate intercorporate indebtedness existing between Parent or its subsidiaries, on the one hand, and the Company (or any of its Subsidiaries) and Parent (or any of its Subsidiaries) or Sub subsidiaries, on the other hand, that was issued or acquiredissued, acquired or will be settled, settled at a discount.
1720. None of the compensation to be received by any stockholder-employees of the Company represents separate consideration for, or will be allocable to, any of such stockholder-employee’s shares of Company Common Stock. None ; (ii) none of the shares of Parent Common Stock to be received by any stockholder-employees of the Company in connection with the Merger will be separate consideration for, or allocable to, any employment, consulting or similar agreement or arrangement. The ; and (iii) the compensation paid to any stockholder-employees of the Company has been or will be for services actually rendered (or to be rendered) and will be commensurate with amounts paid to third parties bargaining at arm’s-length for similar services. No part of the Merger Consideration will be received by a stockholder of the Company as a creditor, employee, or in any capacity other than as a stockholder of the Company.
1821. Company Parent is not not, and will not be be, a debtor under the jurisdiction of a court in a case in a Title 11 or similar case. For purpose purposes of the foregoing, a “Title 11 or similar case” means a case under Title 11 of the United States Code or a receivership, foreclosure or similar proceeding in a federal or state court.
1922. Xxx Xxxxxx Xxxxxxxxx, X-0 and Proxy Statement and the other documents described in the S-4 and the Proxy Statement represent the entire understanding of Company, Sub and Parent with respect to the Merger. The terms of the Merger Agreement and all other agreements entered into in connection therewith are the product of arm’s length negotiations.
2023. The undersigned is authorized to make all of the statements and representations set forth herein on behalf of CompanyParent and Sub.
Appears in 1 contract
Statements and Representations. In connection with the opinions such opinion to be rendered by each of you as provided in the Merger Agreementyou, and acknowledging that each of you will rely, with the consent of CompanyParent and C MergerCo, upon the statements and representations made in this letter in rendering such opinion, Company Parent and C MergerCo hereby certifies certify and represents represent to each of you that the statements and representations made stated herein as they relate to Parent and C MergerCo are true, correct and complete in all respects as of the date hereof and will be true, correct and complete in all respects as of the Effective Time (as if made as of the Effective Time).):
1. As pertains to the Company, the descriptions of the facts and documents contained in the S-4 and the Proxy Statement are true, correct and complete descriptions of such facts and documents in all material respects.
2. Company has entered into the Merger Agreement, and will effect the Merger, for good and valid business reasons. The fair market value of the Merger Consideration Parent common stock ("Parent Common Stock") and cash in lieu of fractional shares of Parent Common Stock received by each stockholder holders of the Company CIMA Common Stock ("Shareholders") will be approximately equal to the fair market value of Company CIMA Common Stock surrendered by such stockholder in the CIMA Merger.
3. In connection with the CIMA Merger, no holder of Company Common Stock Shareholders will receive in exchange for Company CIMA Common Stock, directly or indirectly, any consideration from Parent or C MergerCo other than Parent Common Stock or and cash in lieu of a fractional share shares thereof.
2. The Neither Parent nor C MergerCo has any plan or intention: (i) to liquidate CIMA; (ii) to merge CIMA into another corporation; (iii) to sell or otherwise dispose of any CIMA Common Stock into which Company Common Stock will be converted in the Merger will be entitled to vote in the election of directors of acquired by Parent and on all other matters put forth or C MergerCo pursuant to the shareholders Agreement, except for transfers and successive transfers of Parent stock and assets described in Treasury Regulation Section 1.368-2(k) or transfers or successive transfers to one or more corporations controlled (“Parent Voting Common Stock”within the meaning of Section 368(c) of the Internal Revenue Code of 1986, as amended (the "Code"). Further) in each transfer by the transferor corporation at the time of transfer; or (iv) to sell or otherwise dispose of, no liabilities or to cause CIMA to sell or otherwise dispose of, any of Company its assets or of Company stockholders will be assumed by Parent in connection with the Merger, nor will any of the Company Common Stock assets of C MergerCo acquired in the CIMA Merger, except for (w) dispositions made in the ordinary course of business, (x) transfers and successive transfers to one or more corporations controlled in each transfer by the transferor corporation (within the meaning of Section 368(c) of the Code) at the time of transfer, (y) dispositions after which CIMA would continue to hold the amount of assets set forth in paragraphs 3 and 13 below following the Effective Time (assuming the correctness of the representation set forth in paragraphs 3 and 13 below), or (z) transfers to partnerships that satisfy the provisions of Treasury Regulation Section 1.368-1(d)(4)(iii)(B).
3. Assuming the correctness of the representation in paragraph 2 of the representation letter executed by CIMA, following the CIMA Merger, CIMA will hold at least 90 percent (90%) of the fair market value of CIMA's net assets and at least 70 percent (70%) of the fair market value of CIMA's gross assets and at least 90 percent (90%) of the fair market value of C MergerCo's net assets and at least 70 percent (70%) of C MergerCo's gross assets held immediately prior to the Effective Time. For purposes of this representation, amounts paid by CIMA or C MergerCo to dissenters, amounts paid by CIMA or C MergerCo to Shareholders who receive cash or other property, amounts paid by CIMA to redeem stock, securities, warrants or options of CIMA as part of any overall plan of which the CIMA Merger is part, amounts distributed by CIMA to Shareholders (except for regular, normal dividends) as part of an overall plan of which the CIMA Merger is a part, and amounts used by CIMA or C MergerCo to pay reorganization expenses will in each case be subject included as assets of CIMA or C MergerCo, as the case may be, immediately prior to any liabilitiesthe Effective Time.
4. Immediately following At all times prior to the CIMA Merger, Parent will own shares all of Company Common Stock representing control the stock of CompanyC MergerCo, and, immediately following the CIMA Merger, Parent will own all of the stock of CIMA. For purposes Prior to the CIMA Merger, C MergerCo will not have outstanding any warrants, options, convertible securities, or any other type of this representation letterright pursuant to which any person could acquire stock in C MergerCo, “control” with respect to or following the CIMA Merger, stock in CIMA. C MergerCo is a corporation shall mean ownership newly formed for the purpose of participating in the CIMA Merger and at least no time prior to the Effective Time has had assets (iother than nominal assets contributed upon the formation of C MergerCo, all of which assets will be held by CIMA following the CIMA Merger) 80 percent of the total combined voting power of all classes of stock entitled to vote and (ii) 80 percent of the total number of shares of each other class of stock of the corporationor business operations.
5. Company C MergerCo will have no liabilities assumed by CIMA and will not transfer to CIMA any assets subject to liabilities in the CIMA Merger.
6. Prior to the CIMA Merger and through the Effective Time, Parent will be in control of C MergerCo within the meaning of Section 368(c) of the Code. Following the CIMA Merger, Parent will be in control of CIMA within the meaning of Section 368(c) of the Code.
7. Parent has no plan or intention to cause CIMA, after the Effective Time, to issue additional shares (or any options, warrants or other rights to acquire the beneficial or legal ownership of any shares of its stock) stock that would result in Parent losing control of Company after CIMA within the meaning of Section 368(c) of the Code.
8. Following the CIMA Merger, neither Parent nor any person related to Parent within the meaning of Treasury Regulation Sections 1.368-1(e)(3), (e)(4) and (e)(5) has any plan or intention to purchase, redeem or otherwise reacquire any Parent Common Stock issued pursuant to the Agreement, or to make any distributions to the former Shareholders other than regular, normal distributions made to all holders of Parent Common Stock.
9. There is no intercorporate indebtedness existing between Parent and any of its subsidiaries, on the one hand, and CIMA and any of its subsidiaries, on the other hand, that was issued, acquired, or will be settled at a discount. No liabilities relating to the CIMA Common Stock being transferred to Parent will be assumed by Parent, and the CIMA Common Stock that is being transferred to Parent will not be transferred subject to any liabilities. Immediately prior to the Effective Time, there will be no indebtedness between the Shareholders and Parent, and there will be no indebtedness created in favor of the Shareholders as a result of the CIMA Merger.
610. The payment of cash to holders of Company In the CIMA Merger, CIMA Common Stock representing control of CIMA (within the meaning of Section 368(c) of the Code) will be exchanged solely for "voting stock" of Parent (within the meaning of Sections 368(a)(1)(B) and (2)(E) of the Code). For purposes of this paragraph 10, CIMA Common Stock to be exchanged for cash or other property originating with Parent are treated as constituting outstanding CIMA Common Stock at the Effective Time.
11. Except as provided in Section 9.05 of the Agreement, each of Parent and C MergerCo has paid and will pay only their respective expenses, if any, incurred in connection with the CIMA Merger, and neither Parent nor C MergerCo has agreed to assume, nor will either directly or indirectly assume, any expense or other liability, whether fixed or contingent, of any Shareholder. CIMA Common Stock acquired by either Parent or C MergerCo in the CIMA Merger will not be subject to any liabilities.
12. As of the Effective Time, neither Parent nor any person related to Parent within the meaning of Treasury Regulation Sections 1.368-1(e)(3), (e)(4) and (e)(5) will own beneficially or of record, or will have owned beneficially or of record, during the five years immediately prior to such time, any stock of CIMA, or other securities, options, warrants or instruments giving the holder thereof the right to acquire CIMA Common Stock or other securities issued by CIMA.
13. Following the CIMA Merger, Parent will remain in existence, and CIMA, or a member of Parent's qualified group of corporations (as defined in Treasury Regulation Section 1.368-1(d)(4)(ii)), will continue the "historic business" of CIMA (or, alternatively, if CIMA has more than one line of business, will continue at least one significant line of CIMA's historic business) or use a "significant portion" (at least 33 1/3 percent (33 1/3%) by value) of CIMA's "historic business assets" in a business (within the meaning of Treasury Regulation Section 1.368-1(d)). For purposes of this test, Parent and such members (i) shall be deemed to own that portion of the assets of a partnership reflecting their interest therein and (ii) shall be treated as conducting the business of a partnership of which they are members, provided that (A) they own in the aggregate at least a 33 1/3 percent (33 1/3%) capital and profits interest in such partnership or (B) they own in the aggregate at least a 20 percent (20%) capital and profits interest in such partnership and perform active and substantial managerial functions with respect thereto.
14. Neither Parent nor C MergerCo is an "investment company" as defined in Sections 368(a)(2)(F)(iii) and (iv) of the Code, and Parent will not be an investment company within the meaning of Section 351(e)(1) of the Code and Treasury Regulation Section 1.351-1(c)(1)(ii).
15. Neither Parent nor C MergerCo will directly or indirectly provide funds to make payments in respect of dissenting shares.
16. Except for cash paid in lieu of fractional shares of Parent Common Stock that would otherwise and except for payments made to dissenting Shareholders, one hundred percent (100%) of CIMA Common Stock outstanding immediately prior to the Effective Time will be issued to stockholders of Company exchanged for Parent Common Stock. The issuance in the CIMA Merger is of cash in lieu of fractional shares of Parent Common Stock represents a mere mechanical rounding off solely for the purpose of avoiding the expense and inconvenience to Parent of issuing and transferring fractional shares of Parent Common Stock and does not represent separately bargained-for consideration. The total cash consideration that will be paid in pursuant to the Merger Agreement to stockholders of Company the Shareholders instead of issuing fractional shares of Parent Common Stock will not exceed one percent (1%) of the total consideration that will be issued in pursuant to the Merger Agreement to stockholders of Company the Shareholders in exchange for their shares of Company CIMA Common Stock. The fractional share interests of each stockholder of Company Shareholder will be aggregated aggregated, and no stockholder Shareholder, with the possible exception of Company Shareholders whose holdings are in multiple accounts or with multiple brokers, will receive in the Merger cash in lieu of fractional shares in an amount equal to or greater than the value of one full share of Parent Common Stock, with the possible exception of stockholders of the Company whose holdings of Company Common Stock are in multiple accounts or with multiple brokers.
7. None of the cash received by the Company from the issuance of stock, or notes that were converted into stock, to Sub or any of Sub’s current or former direct or indirect owners was distributed or otherwise paid out to the stockholders of the Company.
8. Except for expenses incurred in connection with the filing, printing and mailing of the Information Statement/Prospectus (which will be shared equally by Parent and Company), Company has paid and will only pay its own expenses, if any, incurred in connection with the Merger, and Company has not agreed to assume any expenses or other liabilities, whether fixed or contingent, incurred or to be incurred, by any stockholder of Company in connection with or as part of the Merger or any related transactions. Notwithstanding the foregoing, to the extent that any transfer tax or other expense is a liability of a holder of Company stock; such liability will be paid either by such holder or by Company and in no event by Parent or Sub.
9. The only capital stock of Company issued and outstanding is Company Common Stock. At the time of the Merger, Company will not have outstanding any warrants, options, convertible securities or any other type of right which, if exercised or converted, would affect Parent’s acquisition or retention of control of Company. Company has not treated any stock, indebtedness, instrument or other contractual arrangement (other than Company Common Stock) as equity of, or a proprietary interest in, Company for U.S. federal income tax purposes.
10. Company operates at least one historic business or owns at least a significant portion of its historic business assets within the meaning of Treasury Regulation Section 1.368-1(d), and no assets of Company have been sold, transferred or otherwise disposed of which would prevent Company from continuing its historic business or from using a significant portion of its historic business assets in a business following the Merger.
11. Company will not as of the Effective Time, and has no plan or intent to, (i) elect, or have in effect an election, to be treated as a “regulated investment company” or as a “real estate investment trust” or file any tax return consistent with such treatment or (ii) be a corporation 50 percent or more of the fair market value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are held for investment. In making the determinations described in (ii) above, (x) the stock and securities of any subsidiary of Company shall be disregarded and Company shall be deemed to own its ratable share of such subsidiary’s assets and (y) a corporation shall be considered to be a subsidiary of Company if Company owns 50 percent or more of the combined voting power of all classes of the stock of such subsidiary that are entitled to vote, or 50 percent or more the total value of all classes of the outstanding stock of such subsidiary. In addition, in determining the fair market value of Company’s total assets for the purposes of making this representation, Company shall exclude any cash and cash items (such as receivables), government securities and, to the extent provided in the applicable Treasury regulations, any assets required (through incurring indebtedness or otherwise) for the purposes of causing Company to not be characterized as an entity described in (i) or (ii) of the first sentence of this paragraph or causing Company to meet the requirements of Section 368(a)(2)(F)(ii) of the Code.
12. There will be no dissenters in the Merger.
13. At the time of the Merger, the fair market value of the assets of Company will equal or exceed the sum of its liabilities plus (without duplication) the amount of liabilities, if any, to which Company’s assets are or will be subject.
14. Neither Company nor any corporation related to Company has purchased, redeemed or otherwise acquired, or made any distributions with respect to, any Company Common Stock prior to and in contemplation of the Merger, or otherwise as part of a plan of which the Merger is a part. For purposes of this representation letter, two corporations shall be treated as “related” to one another if immediately prior to or immediately after the Merger, (a) the corporations are members of the same affiliated group (within the meaning of Section 1504 of the Code, but determined without regard to Section 1504(b) of the Code) or (b) one corporation owns 50 percent or more of the total combined voting power of all classes of stock of the other corporation that are entitled to vote or 50 percent or more of the total value of all classes of stock of the other corporation (applying the attribution rules of Section 318 of the Code as modified pursuant to Section 304(c)(3)(B) of the Code) or (c) a purchase of the stock of one corporation by another corporation would be treated as a distribution in redemption of the stock of the first corporation under Section 304(a)(2) of the Code (determined without regard to Treasury Regulation Section 1.1502-80(b)). For purposes of this representation, a corporation that is a partner in a partnership will be treated as owning or acquiring any stock owned or acquired, as the case may be, by the partnership and as having furnished its share of any consideration furnished by the partnership to acquire the stock, in each case, in accordance with its interest in the partnership.
15. To the best knowledge of the management of Company, there is no plan or intention on the part of the stockholders of Company to sell, exchange or otherwise transfer ownership of (including by derivative transactions such as an equity swap which would have the economic effect of a transfer of ownership) any share of Parent Common Stock received in the Merger (other than fractional shares of Parent Common Stock for which Company stockholders receive cash in the Merger) to Parent, or to any corporation related to Parent, directly or indirectly, other than through open-market purchases of Parent Common Stock pursuant to a general stock repurchase program of Parent that has not been created or modified in connection with the Merger.
16. There is no inter-corporate indebtedness existing between Company (or any of its Subsidiaries) and Parent (or any of its Subsidiaries) or Sub that was issued or acquired, or will be settled, at a discountClosing Date.
17. None of the compensation to be received by any stockholder-employees of Company represents separate consideration for, or will be allocable to, any of such stockholder-employee’s shares of Company Common Stock. None of the shares of Parent Common Stock to be received by any stockholder-employees of Company in connection with the Merger CIMA will be separate consideration for, or allocable to, any employmentof their CIMA Common Stock. None of the Parent Common Stock received by any stockholder-employees, consulting as part of any overall plan of which the CIMA Merger is a part, will be separate consideration for, or similar agreement or arrangementallocable to, any employment agreement. The compensation paid to any stockholder-employees of Company has been or will be for services actually rendered (or to be rendered) and will be commensurate with amounts paid to third parties bargaining at arm’s-arm's length for similar services. No part of the Merger Consideration will be received by a stockholder of Company as a creditor, employee, or in any capacity other than as a stockholder of Company.
18. Company is The Parent Common Stock issued in the Mergers will constitute all of Parent's outstanding stock immediately following the Mergers. Parent will not issue any Parent Common Stock in connection with the Mergers in consideration for services rendered to or for the benefit of Parent or any of its affiliates, or in consideration for the transfer of any property other than CIMA Common Stock and aaiPharma Stock. Parent will not issue any Parent Common Stock for indebtedness of Parent or for interest on indebtedness of Parent, in each case in connection with the Mergers.
19. Parent has no plan or intention to issue additional stock following the CIMA Merger, except pursuant to the exercise of employee stock options in the ordinary course of business.
20. Taking into account any issuance of additional shares of Parent Common Stock, any issuance of Parent Common Stock for services, the exercise of any Parent Common Stock rights, warrants, options or subscriptions, any public offering of Parent Common Stock and the sale, exchange, transfer by gift or other disposition of any of the Parent Common Stock to be received in the Mergers, the Shareholders and holders of aaiPharma Stock will, immediately after the Effective Time, collectively be in "control" of Parent within the meaning of Section 368(c) of the Code.
21. At the Effective Time and immediately thereafter, Parent will not be a debtor under "personal services corporation" within the jurisdiction meaning of a court Section 269A.
22. Parent and C MergerCo will comply with the reporting and record-keeping requirements set forth in a case Treasury Regulation Sections 1.351-3 and/or 1.368-3.
23. The CIMA Merger will be consummated in a Title 11 or similar case. For purpose compliance with the material terms of the foregoing, Agreement. The Mergers will occur under a “Title 11 or similar case” means a case under Title 11 plan agreed upon before the transaction in which the rights of the United States Code or a receivership, foreclosure or similar proceeding in a federal or state courtparties are defined and will be completed on the same date.
1924. Xxx Xxxxxx XxxxxxxxxParent and C MergerCo have a bona fide business reason for engaging in the CIMA Merger.
25. None of Parent, X-0 C MergerCo and Proxy Statement CIMA, will take any position on any federal, state or local income or franchise tax return, or take any other reporting position, that is inconsistent with the treatment of the CIMA Merger as a reorganization within the meaning of Section 368(a) of the Code and the other documents Mergers, when viewed together, as an exchange described in Section 351 of the S-4 and Code, unless otherwise required by a final "determination" (as defined in Section 1313(a)(1) of the Proxy Statement represent the entire understanding of Company, Sub and Parent with respect to the MergerCode) or by applicable state or local income or franchise tax law.
26. The terms of the Merger Agreement and all other agreements entered into in connection therewith are the product of arm’s 's length negotiationsnegotiations and such agreements represent the entire understanding of the parties with respect to the Mergers.
2027. The undersigned is are authorized to make all of the statements and representations set forth herein on behalf of Companyherein.
Appears in 1 contract
Samples: Merger Agreement (Aaipharma Inc)
Statements and Representations. In connection with the opinions to be rendered by each of you as provided in the Merger Agreementsuch opinions, and acknowledging that each of you will rely, with the consent of Company’s consent, upon the statements and representations made in this letter in rendering such opinion, the Company hereby certifies and represents to each of you that the statements and representations made herein as they relate to the Company are true, correct and complete in all respects at the date hereof and will be true, correct and complete in all respects as of the Effective Time (as if made as of the Effective Time).):
1. As pertains to the Company, the descriptions of the facts and documents contained in the S-4 and the Proxy Statement are true, correct and complete descriptions of such facts and documents in all material respects.
2. Company has entered into the Merger Agreement, and will effect the Merger, for good and valid business reasons. The fair market value of the Merger Consideration Parent Common Stock and cash in lieu of fractional shares of Parent Common Stock received by each stockholder holders of the Company Common Stock (“Company Stockholders”) other than Parent will be approximately equal to the fair market value of the Table of Contents Company Common Stock surrendered by such stockholder Company Stockholders in the Merger.
3. In connection with the Merger, no holder of Company Common Stock Stockholder will receive in exchange for Company Common Stock, directly or indirectly, any consideration from Parent (or Merger Sub) other than Parent Common Stock or and cash in lieu of a fractional share thereof. The Parent Common Stock into which Company Common Stock will be converted in the Merger will be entitled to vote in the election of directors of Parent and on all other matters put forth to the shareholders of Parent (“Parent Voting Common Stock”). Further, no liabilities of Company or of Company stockholders will be assumed by Parent in connection with the Merger, nor will any of the Company Common Stock be subject to any liabilities.
4. Immediately following the Merger, Parent will own shares of Company Common Stock representing control of Company. For purposes of this representation letter, “control” with respect to a corporation shall mean ownership of at least (i) 80 percent of the total combined voting power of all classes of stock entitled to vote and (ii) 80 percent of the total number of shares of each other class of stock of the corporation.
5. Company has no plan or intention to issue additional shares (or any options, warrants or other rights to acquire the beneficial or legal ownership of any shares of its stock) that would result in Parent losing control of Company after the Merger.
6. The payment of cash to holders of Company Common Stock in lieu of fractional shares of Parent Common Stock that would otherwise be issued to stockholders of Company in the Merger is solely for the purpose of avoiding the expense and inconvenience to Parent of issuing and transferring fractional shares of Parent Common Stock and does not represent separately bargained-for consideration. The total cash consideration that will be paid in the Merger to stockholders of Company instead of issuing fractional shares of Parent Common Stock will not exceed one percent of the total consideration that will be issued in the Merger to stockholders of Company in exchange for their shares of Company Common Stock. The fractional share interests of each stockholder of Company will be aggregated and no stockholder of Company will receive in the Merger cash in lieu of fractional shares in an amount equal to or greater than the value of one full share of Parent Common Stock, with the possible exception of stockholders of the Company whose holdings of Company Common Stock are in multiple accounts or with multiple brokers.
72. None of the cash received by the Company from the issuance of stockAny dispositions, or notes that were converted into stock, to Sub or any of Sub’s current or former direct or indirect owners was distributed or otherwise paid out to the stockholders of the Company.
8. Except for expenses incurred in connection with the filing, printing and mailing of the Information Statement/Prospectus (which will be shared equally by Parent and Company), Company has paid and will only pay its own expenses, if any, incurred in connection with the Merger, and Company has not agreed to assume any expenses or other liabilities, whether fixed or contingent, incurred or to be incurred, by any stockholder of Company in connection with contemplation or as part of the Merger Merger, of assets held by the Company will be (or have been) for full fair market value.
3. Neither the Company nor any person related transactions. Notwithstanding the foregoing, to the extent that any transfer tax or other expense is a liability of a holder of Company stock; such liability will be paid either by such holder or by Company and in no event by Parent or Sub.
9. The only capital stock of Company issued and outstanding is Company Common Stock. At the time of the Merger, Company will not have outstanding any warrants, options, convertible securities or any other type of right which, if exercised or converted, would affect Parent’s acquisition or retention of control of Company. Company has not treated any stock, indebtedness, instrument or other contractual arrangement (other than Company Common Stock) as equity of, or a proprietary interest in, Company for U.S. federal income tax purposes.
10. Company operates at least one historic business or owns at least a significant portion of its historic business assets within the meaning of Treasury Regulation Section Sections 1.368-1(d1(e)(3), (e)(4), and no assets (e)(5) (other than Parent, by virtue of Company have been sold, transferred stock acquisitions in 2003 or otherwise disposed of which would prevent Company from continuing its historic business or from using a significant portion of its historic business assets in a business following pursuant to the Merger.
11. Company will not as of the Effective Time, and has no plan or intent to, (i) elect, or have in effect an election, to be treated as a “regulated investment company” or as a “real estate investment trust” or file any tax return consistent with such treatment or (ii) be a corporation 50 percent or more of the fair market value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are held for investment. In making the determinations described in (ii) above, (x) the stock and securities of any subsidiary of Company shall be disregarded and Company shall be deemed to own its ratable share of such subsidiary’s assets and (y) a corporation shall be considered to be a subsidiary of Company if Company owns 50 percent or more of the combined voting power of all classes of the stock of such subsidiary that are entitled to vote, or 50 percent or more the total value of all classes of the outstanding stock of such subsidiary. In addition, in determining the fair market value of Company’s total assets for the purposes of making this representation, Company shall exclude any cash and cash items (such as receivables), government securities and, to the extent provided in the applicable Treasury regulations, any assets required (through incurring indebtedness or otherwise) for the purposes of causing Company to not be characterized as an entity described in (i) or (ii) of the first sentence of this paragraph or causing Company to meet the requirements of Section 368(a)(2)(F)(ii) of the Code.
12. There will be no dissenters in the Merger.
13. At the time of the Merger, the fair market value of the assets of Company will equal or exceed the sum of its liabilities plus (without duplication) the amount of liabilities, if any, to which Company’s assets are or will be subject.
14. Neither Company nor any corporation related to Company has purchased, redeemed or otherwise acquired, or made any distributions with respect to, any Company Common Stock prior to and or in contemplation of the Merger, or otherwise as part of a plan of which the Merger is a part.
4. For purposes The liabilities of this representation letterthe Company assumed by the Surviving Entity and the liabilities to which the assets of the Company are subject were incurred by the Company in the ordinary course of its business.
5. The business currently carried on by the Company is its “historic business” within the meaning of Treasury Regulation Section 1.368-1(d), two corporations shall be treated as and no assets of the Company have been sold, transferred or otherwise disposed of which would prevent Parent or the Surviving Entity from continuing the “relatedhistoric business” to one another if immediately prior to of the Company or immediately after from using a “significant portion” of the Company’s “historic business assets” in a business following the Merger, (a) the corporations as such terms are members used in Treasury Regulations Section 1.368-1(d).
6. Except as provided in Sections 8.2 and 8.5 of the same affiliated group Agreement, the Company and each Company Stockholder has paid and will pay only their respective expenses, if any, incurred in connection with the Merger, and the Company has not agreed to assume, and will not either directly or indirectly assume, any expense or other liability, whether fixed or contingent, of any Company Stockholder.
7. There is no intercorporate indebtedness existing between Parent and the Company or between Merger Sub and the Company that was issued, acquired, or will be settled at a discount.
8. The Company is not an “investment company” as defined in Sections 368(a)(2)(F)(iii) and (iv) of the Code.
9. The Company is not under the jurisdiction of a court in a title 11 or similar case within the meaning of Section 1504 of the Code, but determined without regard to Section 1504(b368(a)(3)(A) of the Code) or (b) one corporation owns 50 percent or more of the total combined voting power of all classes of stock of the other corporation that are entitled to vote or 50 percent or more of the total value of all classes of stock of the other corporation (applying the attribution rules of Section 318 of the Code as modified pursuant to Section 304(c)(3)(B) of the Code) or (c) a purchase of the stock of one corporation by another corporation would be treated as a distribution in redemption of the stock of the first corporation under Section 304(a)(2) of the Code (determined without regard to Treasury Regulation Section 1.1502-80(b)). For purposes of this representation, a corporation that is a partner in a partnership will be treated as owning or acquiring any stock owned or acquired, as the case may be, by the partnership and as having furnished its share of any consideration furnished by the partnership to acquire the stock, in each case, in accordance with its interest in the partnership.
1510. To the best knowledge of the management of Company, there is no plan or intention on the part of the stockholders of Company to sell, exchange or otherwise transfer ownership of (including by derivative transactions such as an equity swap which would have the economic effect of a transfer of ownership) any share of Parent Common Stock received The issuance in the Merger (other than of cash in lieu of fractional shares of Parent Common Stock represents a mere mechanical rounding off solely for which Company stockholders receive the purpose of avoiding the expense and inconvenience to Parent of issuing fractional shares and does not represent separately bargained-for consideration. The total cash consideration that will be in the Merger) to Parent, or to any corporation related to Parent, directly or indirectly, other than through open-market purchases lieu of issuing fractional shares of Parent Common Stock will not exceed [one] percent ([1]%) of the total consideration Table of Contents that will be issued pursuant to a general stock repurchase program the Agreement to the Stockholders in exchange for their Company Common Stock. The fractional share interests of each Company Stockholder will be aggregated, and no Company Stockholder, with the possible exception of Company Stockholders whose holdings are in multiple accounts or with multiple brokers, will receive cash in an amount equal to or greater than the value of one full share of Parent that has not been created or modified in connection with Common Stock valued at the MergerParent Closing Price.
1611. There is no inter-corporate indebtedness existing between Company To the knowledge of the Company, (or any of its Subsidiariesi) and Parent (or any of its Subsidiaries) or Sub that was issued or acquired, or will be settled, at a discount.
17. None none of the compensation to be received by any stockholder-employees of the Company represents separate consideration for, or will be allocable to, any of such stockholder-employee’s shares of Company Common Stock. None of the shares of Parent Common Stock to be received by any stockholder-employees of Company in connection with the Merger will be separate consideration for, or allocable to, any employment, consulting of the Company Common Stock held by such stockholder-employee; (ii) none of the Parent Common Stock received by any stockholder-employees will be consideration for services or similar agreement or allocable to any employment arrangement. The ; and (iii) the compensation paid to any stockholder-employees of Company has been by Parent or by the Surviving Entity following the Merger will be for services actually rendered (or to be rendered) and will be commensurate with amounts that would be paid to third parties bargaining at arm’s-length for similar services.
12. No part In the Merger, the Company will transfer all of its assets and liabilities to Merger Sub, and the Company will cease its separate legal existence for all purposes.
13. The Company has a bona fide business reason for engaging in the Merger.
14. The fair market value of the Merger Consideration Company’s assets that will be received transferred to Merger Sub in the Merger will equal or exceed the sum of the liabilities that will be assumed by a stockholder Merger Sub plus the amount of Company as a creditorliabilities, employeeif any, or in any capacity other than as a stockholder of Companyto which the transferred assets will be subject.
1815. At the Effective Time, there will be no accrued but unpaid dividends on the Company is not and will not be a debtor under the jurisdiction of a court in a case in a Title 11 or similar case. For purpose of the foregoing, a “Title 11 or similar case” means a case under Title 11 of the United States Code or a receivership, foreclosure or similar proceeding in a federal or state courtStock.
19. Xxx Xxxxxx Xxxxxxxxx, X-0 and Proxy Statement and the other documents described in the S-4 and the Proxy Statement represent the entire understanding of Company, Sub and Parent with respect to the Merger16. The terms of the Merger Agreement and all other agreements entered into in connection therewith are the product of arm’s length negotiations.
2017. The Merger will be consummated in compliance with the terms of the Agreement, none of the material terms and conditions therein has been waived or modified, and the Company has no plan or intention to waive or modify any such terms or conditions.
18. The Company is not aware of any facts or circumstances that would cause the Merger to fail to qualify as a reorganization within the meaning of Section 368(a) of the Code.
19. The undersigned is are authorized to make all of the statements and representations set forth herein on behalf herein. Table of Company.Contents
Appears in 1 contract
Samples: Merger Agreement (Tularik Inc)
