ZBRA » Topics » CONDITIONS TO THE MERGER

This excerpt taken from the ZBRA 8-K filed Dec 17, 2007.

CONDITIONS TO THE MERGER

6.1      Conditions to the Obligations of Each Party to Effect the Merger. The respective obligations of each party to this Agreement to effect the Merger shall be subject to the satisfaction at or prior to the Closing Date of the following conditions:

  (a)      Company Member Approvals.  Each of the Member Approvals shall have been obtained.

  (b)      No Order. No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which (i) is in effect and (ii) has the effect of making the Merger illegal.

  (c)      Antitrust Approvals.  The waiting period (and any extension thereof) under the HSR Act relating to the transactions contemplated hereby shall have expired or terminated early and all required non-U.S. antitrust approvals shall have been obtained.

6.2      Additional Conditions to the Obligations of the Company. The obligation of the Company to consummate and effect the Merger shall be subject to the satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by the Company:

  (a)      Representations and Warranties.  The representations and warranties of Parent and Merger Sub set forth herein (i) that are qualified as to “Material Adverse Effect” shall be true and correct and (ii) that are not so qualified as to “Material Adverse Effect” shall be true and correct, in each case both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of a particular date, in which case as of such date), except to the extent that the failure of any such representations and warranties, in the case of any such representations and warranties referred to in clause (ii) made at and as of the Closing Date, to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent or Merger Sub or a material adverse effect on Parent’s or Merger Sub’s ability to consummate the Merger. At the Closing, the Company shall have received a certificate to such effect signed on behalf of Parent by an authorized executive officer of Parent.

  (b)      Agreements and Covenants.  Parent and Merger Sub shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date, and the Company shall have received a certificate with respect to the foregoing signed on behalf of Parent, with respect to the covenants of Parent, by an authorized executive officer of Parent and a certificate with respect to the foregoing signed on behalf of Merger Sub, with respect to the covenants of Merger Sub, by an authorized executive officer of Merger Sub.

6.3      Additional Conditions to the Obligations of Parent and Merger Sub.  The obligations of Parent and Merger Sub to consummate and effect the Merger shall be subject to

 

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the satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Parent:

  (a)      Representations and Warranties.  (i)  The Fundamental Representations shall be true and correct in all respects (other than for such failures to be true and correct as are de minimus in effect), and (ii) the representations and warranties of the Company set forth in this Agreement (other than those specified in clause (i) above) (A) that are qualified as to “Material Adverse Effect” shall be true and correct and (B) that are not so qualified as to “Material Adverse Effect” shall be true and correct, in each case both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of a particular date, in which case as of such date), except to the extent that the failure of any such representations and warranties, in the case of any such representations and warranties referred to in clause (ii)(B) made at and as of the Closing Date, to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. At the Closing, Parent shall have received a certificate to such effect signed on behalf of the Company by an authorized executive officer of the Company.

  (b)      Agreements and Covenants.  The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, and Parent and Merger Sub shall have received a certificate to such effect signed on behalf of the Company by an authorized executive officer of the Company.

  (c)      Material Adverse Effect.  Since the date hereof, there shall have been no Material Adverse Effect on the Company or its Subsidiaries that is continuing.

  (d)      Specified Actions.  The Company shall have completed either of the two actions specified in Exhibit 5.17 on terms acceptable to Parent, in its sole discretion exercised in good faith and not arbitrarily, provided that if the actions taken by the Company are not acceptable to Parent, Parent shall make a determination whether this Section 6.3(d) has been satisfied only at or following the time at which all other closing conditions set forth in this Article VI (except for Section 6.3(g)) shall have been satisfied or waived, as applicable (other than those closing conditions that by their terms are to be satisfied or waived at the Closing), provided further that such determination shall not be made until the Company has had a reasonable opportunity to resolve any issues raised by Parent in connection with such Company actions, which shall not exceed ten (10) Business Days from such time the Company is notified in writing of any such issues.

  (e)      Contracts and Permits.  The Company shall have delivered to Parent all consents (in form and substance reasonably acceptable to Parent) to the consummation of the transactions contemplated under this Agreement, if any, as are required under any Contract listed or required to be listed on Section 2.4(c) of the Company Disclosure Letter (other than the Hong Kong Lease); provided that a determination whether this Section 6.3(e) has been satisfied shall not be made until the Company has had a reasonable opportunity to resolve such dispute or disagreement, which shall not exceed ten (10) Business Days from such time.

 

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  (f)      Payoff Letters and Lien Releases.  Parent shall have received the Payoff Letters, if any, and evidence reasonably satisfactory to Parent of the payment of all Indebtedness indicated in such Payoff Letters and the release of all Liens with respect to such Indebtedness.

  (g)      Option Cancellation Agreements.  (i) Holders representing no less than 90% of the number of outstanding Company Options (calculated immediately prior to the Effective Time) measured by the aggregate number of Option Shares issueable under all outstanding Company Options and the Company shall have entered into and delivered to Parent the Option Cancellation Agreement for their Company Options, and (ii) except for persons who have executed Option Cancellation Agreements, no holder of Company Options shall have advised the Company of any dispute or disagreement with respect to their respective Option Cancellation Agreement, which dispute or disagreement shall not have been resolved by the Company at or prior to the time at which all other closing conditions set forth in this Article VI (except for Section 6.3(d)) shall have been satisfied or waived, as applicable (other than those closing conditions that by their terms are to be satisfied or waived at the Closing), provided that a determination whether this clause (ii) has been satisfied shall not be made until the Company has had a reasonable opportunity to resolve such dispute or disagreement, which shall not exceed ten (10) Business Days from such time.

  (h)      Euromax and ECT Agreements.  None of (A) Addendum II, (B) the Euromax Software License, (C) the Euromax Agreement and (D) the ECT Agreements (excluding any modification of the ECT Agreements effected by Addendum II) shall have been modified after the date hereof without the consent of Parent, except in accordance with Section 4.1(b)(xii)(F). Parent shall have received a correct and complete copy of Addendum II, together with all exhibits, schedules and other attachments relating thereto (including, but not limited to, the TSS Euromax project: Master Plan of Approach, version 0.16 2007-04-12), fully executed by all parties thereto.

  (i)      Resignations of Directors and Officers.  Such members of the board of managers or board of directors, as applicable, and such officers of the Company and its Subsidiaries as are designated in writing to the Company at least five (5) days prior to the Closing Date shall have tendered, effective as of the Closing, their resignations as such directors, managers and/or officers.

  (j)      Resolution.  A copy of the resolution of the Board of Managers of the Company, certified by an authorized officer thereof as having been duly and validly adopted and in full force and effect, authorizing the execution and delivery of this Agreement and consummation of the transactions contemplated hereby, including the Merger.

  (k)      Release.  A release in form and substance attached as Exhibit 6.3(j)(i) hereto, duly executed by the officers and directors of the Company and each of those parties listed on Exhibit 6.3(j)(ii).

  (l)      Closing Certificate. A certificate, dated as of the Closing Date, duly executed by the Company, certifying as to the fulfillment of the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c).

 

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  (m)      Opinions of Counsels. Opinions of counsels for the Company, dated as of the Closing Date, in form and substance reasonably acceptable to counsel for Parent as set forth on Exhibit 6.3(m).

  (n)      Company Statement. A statement issued by the Company in the form set forth in Treasury Regulation 1.1445-11T(d)(2) signed under penalties of perjury required to avoid withholding under Section 1445(e) of the Code and Treasury Regulation 1.1445-11T(d)(1).

  (o)      Indemnification Agreement.  The indemnification agreements listed in Section 2.18(a)(x) of the Company Disclosure Letter shall have been amended to delete Section 9 thereof.

  (p)      Credit Suisse Payoff Letter.  Credit Suisse Securities (USA) LLC shall have executed and delivered to the Company a payoff letter substantially in the form of Exhibit 6.3(p) attached hereto.

  (q)      Employment Agreements. No employee under any of the Employment Agreements shall have on or prior to the Effective Time (i) terminated his employment with the Company, (ii) given notice or indicated his intent to give notice to terminate his employment with the Company or (iii) taken any action that reasonably indicates an intent to breach the terms of his Employment Agreement as if his Employment Agreement were in effect as of such time. None of the Employment Agreements or the Burleigh Confidentiality Agreement shall be amended, modified or terminated by the Company or any of its Subsidiaries prior to the Effective Time unless otherwise mutually agreed to by Parent and the relevant employees.

  (r)      Board Rescission and Ratification.  The Board of Managers of the Company shall, subject to the approval of Parent which approval shall not be unreasonably withheld, have taken the appropriate actions to rescind the resolutions passed at its September 21, 2007 meeting providing for the termination of the Company Option Plan, effective immediately prior to the Effective Time.

  (s)      Escrow Agreement. Parent, the Members’ Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement substantially in the form attached hereto as Exhibit B.

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