JBL » Topics » CONDITIONS PRECEDENT

This excerpt taken from the JBL 10-K filed May 15, 2007.

CONDITIONS PRECEDENT

6.1. Conditions to Each Party’s Obligation to Effect the Merger. The respective obligation of each party to effect the Merger is subject to the satisfaction at or prior to the Merger Effective Date of the following conditions:

(a) Shareholder Approval. The Shareholder Approval shall have been obtained.

(b) No Order. No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger shall be in effect, nor shall any proceeding brought by a Governmental Entity seeking any of the foregoing be pending; and there shall not be any action taken, or any statute, rule, regulation or order (whether temporary, preliminary or permanent) enacted, entered or enforced that makes the consummation of the Merger illegal or prevents or prohibits the Merger.

(c) Government Approvals. All approvals, permits, filings and consents required by Applicable Law have been duly made and received and remain in full force and effect. All waiting

 

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periods under the Taiwan Fair Trade Act, and related Anti-trust laws of PRC relating to the transactions referenced in this Agreement shall have expired or been terminated

6.2. Conditions of Obligations of Buyer. The obligations of Buyer to effect the Merger are subject to the satisfaction of the following conditions, unless waived in writing by Buyer:

(a) Representations and Warranties. The representations and warranties of Graduate set forth in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of Graduate set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Merger Effective Date as through made on and as of the Merger Effective Date (provided that any such representation and warranty made as of a specific date shall be true and correct as of such specific date), and Buyer shall have received a certificate signed by the chairman of the board of directors and the general manager of Graduate to such effect.

(b) Performance of Obligations of Graduate. Graduate shall have performed in all material respects all obligations and covenants required to be performed by it under this Agreement prior to or as of the Merger Effective Date, and Buyer shall have received a certificate signed by the chairman of the board of directors and the general manager of Graduate to such effect.

(c) Consents. Buyer shall have received duly executed copies of such third party consents and approval as it determines within its sole discretion appropriate.

(d) No Material Adverse Effect. No change, event, condition, circumstance, occurrence, effect, state of facts or development shall have occurred that would reasonably be expected to have a Material Adverse Effect on Graduate or any of its Subsidiaries.

6.3. Conditions of Obligation of Graduate. The obligation of Graduate to effect the Merger is subject to the satisfaction of the following conditions, unless waived in writing by Graduate:

(a) Representations and Warranties. The representations and warranties of Buyer set forth in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of Buyer set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Merger Effective Date as through made on and as of the Merger Effective Date (provided that any such representation and warranty made as of a specific date shall be true and correct as of such specific date), and Graduate shall have received a certificate signed by the chief executive officer and the chief financial officer of the Buyer to such effect.

(b) Performance of Obligations of Buyer. Buyer shall have performed in all material respects all obligations and covenants required to be performed by it under this Agreement prior to or as of the Merger Effective Date, and Graduate shall have received a certificate signed by the chief executive officer and the chief financial officer of Buyer to such effect.

(c) Consents. Graduate shall have received duly executed copies of all material third-party consents and approvals contemplated by this Agreement in form and substance satisfactory to Graduate.

 

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