TPTX » Topics » TO OBLIGATIONS OF RAPTOR

This excerpt taken from the TPTX 8-K filed Jul 28, 2009.

TO OBLIGATIONS OF RAPTOR

The obligations of Raptor to effect the Merger and otherwise consummate the Contemplated Transactions are subject to the satisfaction, or waiver by Raptor, on or before the Closing, of each of the following conditions:

5.1 Accuracy of Representations and Warranties. Each of the representations and warranties of TPT and Merger Sub set forth in this Agreement shall be true and correct in each case as of the date of this Agreement and as of the Closing Date with the same effect as though made on and as of the Closing Date, except (a) in each case, or in the aggregate, where the failure to be true and correct would not reasonably be expected to have a TPT Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, all “TPT Material Adverse Effect” qualifications and other qualifications based on the word “material” contained in such representations and warranties shall be disregarded), (b) that the accuracy of representations and warranties that by their terms speak as of a specified date will be determined as of such date, and (c) to the extent that any representation and/or warranty shall not be true and correct due to those activities permitted under Section 4.2 and consented to in writing by Raptor. Raptor shall have received a certificate signed on behalf of TPT and Merger Sub by the chief executive officer and chief financial officer of each of TPT and Merger Sub to such effect.

5.2 Performance of Covenants. Each of the covenants and obligations that TPT and Merger Sub is required to comply with or perform at or prior to the Closing Date shall have been complied with or performed in all material respects and TPT and Merger Sub shall have provided Raptor with a certificate from an executive officer of TPT and Merger Sub to this effect.

5.3 Effectiveness of Form S-4 Registration Statement. The Form S-4 Registration Statement shall have been declared effective by the SEC in accordance with the provisions of the Securities Act, no stop order suspending the effectiveness of the Form S-4 Registration Statement shall have been issued by the SEC, and no proceeding for that purpose shall have been initiated or threatened by the SEC. All necessary permits and authorizations under any Blue Sky Laws, the Securities Act and the Exchange Act relating to the issuance of the TPT Common Stock to be issued in the Merger shall have been obtained and shall be in effect.

5.4 Stockholder Approval. The issuance of the TPT Common Stock in the Merger, the filing of the TPT Charter Amendment and the election of the persons identified on Part 4.17 of the TPT Disclosure Schedule to the TPT board of directors immediately after the Effective Time shall have been duly approved by the Required TPT Stockholder Vote. This Agreement shall have been duly adopted by the Required Raptor Stockholder Vote.

5.5 Dissenters’ Rights. The stockholders of Raptor holding not more than 10% of the Raptor Common Stock outstanding immediately prior to the Effective Time shall have exercised their statutory dissenters’ rights under Section 262 of the DGCL; provided, however, that such

 

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percentage shall not include any shares of Raptor Common Stock which are held by a director or executive officer of Raptor or the 13,128,332 shares of Raptor Common Stock held by Aran Asset Management SA as of the date hereof.

5.6 Listing. The shares of TPT Common Stock to be issued in the Merger shall have been approved for listing (subject to official notice of issuance) on the NASDAQ Capital Market or, to the extent agreed by the Parties pursuant to Section 4.13, the NASDAQ Global Market.

5.7 No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred and be continuing a TPT Material Adverse Effect.

5.8 Consents. All Consents set forth on Part 5.8 of the TPT Disclosure Schedule shall have been obtained, made or given and shall be in full force and effect.

5.9 No Restraints. No temporary restraining order, preliminary or permanent injunction or other Order preventing the consummation of the Merger shall have been issued by any court of competent jurisdiction or any other Governmental Body and shall remain in effect, and there shall not be any Legal Requirement enacted, promulgated, adopted or deemed applicable to the Merger that makes consummation of the Merger illegal or otherwise prohibits or interferes with the consummation of the Merger.

5.10 No Litigation. There shall not be pending any Legal Proceeding initiated by any Governmental Body: (a) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other Contemplated Transactions; (b) relating to the Merger and seeking to obtain from either Party or any of its Subsidiaries any damages that may be material to Raptor or TPT; (c) seeking to prohibit or limit in any material respect Raptor’s current stockholders’ ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of TPT that they will receive in connection with the Merger; (d) which would materially and adversely affect the right of TPT or the Surviving Corporation to own the assets or operate the business of the TPT Corporations or Raptor or any of Raptor’s current Subsidiaries; (e) seeking to compel Raptor or TPT or any Subsidiary of Raptor or TPT to dispose of or hold separate any material assets, as a result of the Merger or any of the other transactions Contemplated Transactions; or (f) which, if adversely determined, would reasonably be expected to have a TPT Material Adverse Effect or a Raptor Material Adverse Effect.

5.11 Tax Opinion. Raptor shall have received a legal opinion from Paul, Hastings, Janofsky & Walker LLP, counsel to Raptor, dated as of or effective on the Closing Date, addressed to Raptor, to the effect that for federal income tax purposes the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, provided that in rendering such opinion, counsel to Raptor may rely upon the tax representation letters referred to in Section 4.11, and such opinion shall be in full force and effect. If Paul, Hastings, Janofsky & Walker LLP does not render such opinion, this condition shall nonetheless be deemed satisfied if Cooley Godward Kronish LLP renders such opinion to Raptor (it being agreed that TPT and Raptor shall each provide reasonable cooperation, including making reasonable and customary representations, to Paul, Hastings, Janofsky & Walker LLP or Cooley Godward Kronish LLP, as the case may be, to enable them to render such opinion and that counsel shall be entitled to rely on such representations and such assumptions as they deem appropriate in rendering such opinion).

 

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5.12 Cash and Cash Equivalents. The Net Cash at Closing shall be greater than zero dollars.

5.13 Resignations. As of the Closing, Raptor shall have received a duly executed resignation from each person serving as an officer or director of TPT (including any committee thereof) and any Subsidiary of TPT (including any committee thereof), serving in their capacities as such.

5.14 Ancillary Agreements and Deliveries. TPT shall have delivered, or caused to be delivered, to Raptor the items listed on Schedule 5.14 of the TPT Disclosure Schedule, each of which, in the case of agreements and documents, shall be duly executed and in full force and effect.

5.15 Releases. As of the Closing, Raptor shall have received a Release and Waiver of Claims in the form attached hereto as Exhibit E, duly executed by each of Evelyn Graham, Craig Johnson and Paul Schneider.

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