Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act;
(b) the Escrow Agreement in a the form of Exhibit M;
(c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E;
(d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E;
(e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P;
(f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx;
(g) the statement referred to in Section 5.8(a), executed by the Company;
(h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications;
(i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and
(j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement;
(k) the Certificate of Merger, executed by the Company;
(l) the Company Acknowledgments of Payment and Release;
(m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company;
(n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and
(o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting...
Agreements and Documents. Buyer shall have received a certificate executed by Seller containing the representation and warranty of Seller that each of the representations and warranties set forth in Article IV is accurate in all material respects as of the Closing Date and that the conditions set forth in Article V have been duly satisfied.
Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) the statement referred to in Section 5.16(b), executed by the Company;
(b) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC;
(c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC;
(d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13);
(e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and
(f) the written resignations of all officers and directors of the Company, effective as of the Effective Time.
Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) an employment agreement in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Date;
(b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date;
(c) a legal opinion of Xxxxxx Godward LLP dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.11); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, renders such opinion to Parent.
(d) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5 and 6.7, have been duly satisfied; and
(e) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective Time.
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the ...
Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect:
(i) the Paying Agent and Escrow Agreement, executed by the Escrow Agent and the Stockholders’ Representative;
(ii) the non-compete agreements executed by each Key Employee and delivered to and for the benefit of Parent shall continue to be in full force and effect;
(iii) written resignations of all officers and directors of the Company, effective as of the Effective Time;
(iv) a certificate signed by the Chief Executive Officer of the Company, dated as of the Closing Date, affirming that the conditions set forth in Sections 7.3(a), (b) and (c) have been duly satisfied;
(v) a certificate signed by the Chief Financial Officer of the Company certifying the accuracy in all respects of the Payment Schedule;
(vi) a certificate, dated as of the Closing Date, signed by the Secretary of the Company (A) attaching true and correct copies of the certificate of incorporation and bylaws, and any amendments thereto, of the Company, (B) certifying that attached thereto are true and correct copies of actions by written consent or resolutions duly approved by the board of directors and stockholders of the Company which authorize and approve the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated hereby, including the Merger, and (C) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement; and
(vii) a payoff letter in a form reasonably acceptable to Parent executed by each holder of the Company’s Indebtedness and each Person to whom Transaction Expenses of the Company or Change in Control Payments or Carve Out Plan Payments are owed on or promptly following the Closing.
Agreements and Documents. 39 6.6 No Restraints.................................................................................40
Agreements and Documents. Buyer will have received the following agreements and documents, each of which will be in full force and effect:
(a) a certificate executed by Buyer in full force and effect confirming that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.5, 6.6, 6.7 and 6.8 have been duly satisfied.
(b) the duly executed and delivered Indemnity Agreement of Buyer that is attached hereto as Annex 6.4(b) and incorporated herein by reference.
Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Noncompetition Agreements, in the form of Exhibit F, executed by --------- each of the Shareholders;
(b) a Release, in the form of Exhibit G, executed by each of the --------- Shareholders;
(c) a Shareholder Investment Certification, satisfactory in form and content to Parent, executed by each of the Shareholders receiving Parent Common Stock in the Merger;
(d) dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Parent, executed by OB-1 Associates; Western Financial Savings, Bank; Masco Properties; Xxxxxx Enterprises, a limited partnership; and Ad Art, Inc. and any other lessor under any real property lease to which the Company is a party as tenant or subtenant.
(e) the legal opinion of Xxxxx X. Xxxxx, Esq., counsel to the Company and the Shareholders and dated as of the Closing Date, in the form of Exhibit H; ---------
(f) a certificate executed by each of the Shareholders to the effect that each of the representations and warranties set forth in Sections 2 and 3 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 7.1, 7.2, 7.3 and 7.4 have been duly satisfied (the "Closing Certificates");
(g) written resignations of all directors of the Company, effective as of the Effective Time;
(h) a Continuity of Interest Certificate, executed by each of the Shareholders; and
(i) a Spousal Consent, Power of Attorney and Waiver, in the form of Exhibit I, executed by each of the spouses (if any) of Xxxxx X. Xxxx, Xxxxxx X. --------- X'Xxxxx, and Xxx X. Xxxxxx.
Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) The Employment Agreement;
(b) a legal opinion of Xxxxxx Godward llp, dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that (i) in rendering such opinion, Xxxxxx Godward llp may rely upon the tax representation letters referred to in Section 5.10, and (ii) if Xxxxxx Godward llp does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed to be satisfied if Xxxx and Xxxx LLP renders such opinion to Parent);
(c) a certificate executed on behalf of the Company by its Chief Executive Officer and its Chief Financial Officer confirming that each of the conditions set forth in Sections 6.1, 6.2, 6.4 (as it relates to the Required Company Stockholder Vote), 6.5, 6.8, 6.9 and 6.10 have been duly satisfied; and
(d) the written resignations of all directors of each of the Constituent Corporations, effective as of the Effective Time.
