CY » Topics » CONDITIONS

This excerpt taken from the CY 8-K filed Mar 20, 2007.

CONDITIONS

6.1 Conditions to Obligations of Buyer and Seller. The obligations of Buyer to purchase the Transferred Assets and assume the Assumed Liabilities from Seller and Seller to sell (and cause its Subsidiaries to transfer) the Transferred Assets hereunder are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part only by Buyer and Seller acting jointly):

(a) No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any law, order, writ, judgment, injunction, decree, stipulation or determination that is in effect on the Closing Date that has the effect of prohibiting, enjoining or restraining the consummation of the transactions contemplated by this Agreement or the

 

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Collateral Agreements to occur on the Closing Date or otherwise making such transactions illegal. No non-frivolous litigation or proceeding by or before a Governmental Entity shall be pending for the purpose of enjoining or preventing the consummation of this Agreement or claiming that the consummation of this Agreement is illegal or, solely in the case of actions by a Governmental Entity, improper.

(b) All consents, approvals and actions of, filings with and notices to any Governmental Entity necessary to permit Buyer and Seller to perform their obligations under this Agreement and the Collateral Agreements and to consummate the transactions contemplated hereby and thereby shall have been duly obtained, made or given, and all terminations or expirations of waiting periods imposed by any Governmental Entity necessary for the consummation of the transactions contemplated by this Agreement and the Collateral Agreements, shall have occurred.

6.2 Conditions to Obligations of Buyer. The obligations of Buyer hereunder to purchase the Transferred Assets and assume the Assumed Liabilities are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Buyer in its sole discretion):

(a) The representations and warranties set forth in Article 3 (without giving effect to any Seller Material Adverse Effect, materiality or other similar qualifiers therein) shall be true and correct on the Closing Date as though made on the Closing Date (except to the extent such representations and warranties by their terms speak as of an earlier date, in which case they shall be true and correct as of such earlier date), except for such inaccuracies as would not in the aggregate, have a Seller Material Adverse Effect.

(b) Seller shall have performed and complied with, in all material respects, each agreement, covenant and obligation required by this Agreement to be so performed or complied with by Seller at or before the Closing.

(c) Seller shall have delivered to Buyer the closing deliverables set forth in Section 2.8(a).

(d) There shall not have occurred a Seller Material Adverse Effect.

(e) Buyer shall have received at the Closing a certificate, dated as of the Closing Date, of an officer of Seller certifying that the conditions set forth in Sections 6.2(a), 6.2(b) and 6.2(d) have been satisfied.

(f) Buyer shall have received copies of any consents and approvals identified on Schedule 6.2(f).

(g) At least 65% of the Employees set forth on Schedule 6.2(g) shall have accepted employment with Buyer to commence immediately upon the Closing.

 

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(h) Seller shall have delivered to Buyer a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code stating that Seller is not a “Foreign Person” as defined in Section 1445 of the Code.

6.3 Conditions to Obligations of Seller. The obligations of Seller hereunder to sell (and to cause its Subsidiaries to transfer) the Transferred Assets are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Seller in its sole discretion):

(a) The representations and warranties set forth in Article 4 (without giving effect to any Buyer Material Adverse Effect, materiality or other similar qualifiers therein) shall be true and correct on the Closing Date as though made on the Closing Date (except to the extent such representations and warranties by their terms speak as of an earlier date, in which case they shall be true and correct as of such earlier date), except for such inaccuracies as would not in the aggregate have a Buyer Material Adverse Effect.

(b) Buyer shall have performed and complied with, in all material respects, each agreement, covenant and obligation required by this Agreement to be so performed or complied with by Buyer at or before the Closing.

(c) Buyer shall have delivered to Seller the closing deliverables set forth in Section 2.8(b).

(d) There shall not have occurred and be continuing a Buyer Material Adverse Effect.

(e) Seller shall have received at the Closing a certificate, dated as of the Closing Date, of an officer of Buyer certifying that the conditions set forth in Sections 6.3(a), 6.3(b) and 6.3(d) have been satisfied.

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