This excerpt taken from the GMCR 8-K filed Jun 20, 2006.
PARENT AND MERGER SUB
Parent and Merger Sub jointly and severally represent and warrant to the Company, as follows:
3.1 Organization; Standing and Power; Organizational Documents.
(a) Organization; Standing and Power. Parent is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and has the requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted.
(b) Organizational Documents. Parent has delivered or made available to the Company a true and correct copy of (i) the certificate of incorporation and bylaws, or other analogous organizational or governing documents, of Parent, each as amended to date (collectively, the Parent Organizational Documents) and (ii) the certificate of incorporation and bylaws of Merger Sub, each as amended to date (the Merger Sub Organizational Documents). Each of the Parent Organizational Documents and the Merger Sub Organizational Documents is in full force and effect and neither Parent nor Merger Sub is in violation of any of the provisions of the Parent Organizational Documents or the Merger Sub Organizational Documents, respectively.
3.2 Authority; Non-Contravention; Necessary Consents.
(a) Authority. Each of Parent and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement, to perform their respective obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Parent and Merger Sub of this Agreement, the performance by Parent and Merger Sub of their respective obligations hereunder and the consummation by Parent and Merger Sub of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of Parent and Merger Sub. This Agreement has been duly
executed and delivered by Parent and Merger Sub and, assuming the due authorization, execution and delivery hereof by the Company, constitutes a valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization or similar laws now or hereafter in effect relating to creditors rights generally and by general principles of equity. Parent, as the sole stockholder of Merger Sub, has approved and adopted this Agreement.
(b) NonContravention. The execution and delivery of this Agreement by Parent and Merger Sub does not, and the performance by Parent and Merger Sub of their obligations hereunder and the consummation by Parent and Merger Sub of the transactions contemplated hereby do not and will not: (i) conflict with or violate the Parent Organizational Documents or the Merger Sub Organizational Documents, (ii) subject to compliance with the requirements set forth in Section 3.2(c), conflict with or violate any material Legal Requirement applicable to Parent or Merger Sub or (iii) result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, require any consent of any Person pursuant to, impair Parents rights or alter the rights or obligations of any third party under, or give to others any right of termination, amendment, modification, acceleration or cancellation of, allow the imposition of any fees or penalties under, require the offering or making of any payment or redemption under, give rise to any increased, guaranteed, accelerated or additional rights or entitlements of any Person or otherwise adversely affect any rights of the Parent under, or result in the creation of a Lien on any properties or assets of Parent pursuant to, any note, bond, mortgage, indenture, permit, franchise, obligation or other Contract to which Parent is a party or by which Parent or any of its properties or assets are bound, except as would not, individually or in the aggregate, reasonably be expected to impair or delay in any material respect Parents or Merger Subs ability to timely perform their respective obligations hereunder or timely consummate the transactions contemplated hereby.
(c) Necessary Consents. No consent, approval, order, permit or authorization of, or registration, declaration, notice or filing with, any Governmental Entity is required to be filed, sought, obtained or made by Parent or Merger Sub in connection with the execution and delivery by Parent and Merger Sub of this Agreement, the performance by Parent and Merger Sub of their respective obligations hereunder or the consummation by Parent and Merger Sub of the transactions contemplated hereby, except for the Necessary Consents.
3.3 Availability of Funds. Parent currently has binding written commitments (the Commitment Letters) from responsible financial institutions to provide, subject to the terms and conditions set forth therein, the funds necessary to pay the Purchase Price and consummate the transactions contemplated by this Agreement, including the payment of fees and expenses that are for the account of Parent. True and correct copies of the Commitment Letters have been previously furnished to the Company. At the Closing, Parent shall have sufficient immediately available funds, in cash, to pay the aggregate amounts payable hereunder to the Company Securityholders and to provide the Company with or disburse directly the funds to be so provided or disbursed pursuant to Section 1.10.
3.4 Disclosure. None of the information supplied or to be supplied by or on behalf of Parent or Merger Sub for inclusion in the Information Statement will, at the time the Information Statement is distributed to the stockholders of the Company, at the time of the Stockholders
Meeting, if any, or at the time the last consent in writing required to effect the Required Stockholder Approvals is executed, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, no representation or warranty is made by Parent or Merger Sub with respect to any statements made or information included in the Information Statement not supplied by Parent or Merger Sub for inclusion therein.
3.5 Board Approval. On or prior to the date hereof, the board of directors of each of Parent and Merger Sub has, at a meeting thereof duly called and held, or by written consent, (i) determined the Merger to be advisable and (ii) approved this Agreement and the transactions contemplated hereby, including the Merger.
3.6 Parent Ownership of Company Stock. Parent owns beneficially and is entitled to vote (i) 1,642,727 shares of Company Common Stock, (ii) 42,323 shares of Series A Preferred Stock, (iii) 115,546 shares of Series B Preferred Stock and (iv) 470,708 shares of Series C Preferred Stock.