ZBRA » Topics » CONDITIONS PRECEDENT TO THE CLOSING; TERMINATION

This excerpt taken from the ZBRA 10-Q filed May 4, 2007.

CONDITIONS PRECEDENT TO THE CLOSING; TERMINATION

Section 8.1 Conditions Precedent to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub under this Agreement to consummate the transactions contemplated hereby will be subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived in whole or in part in writing by the Parent:

(a) No Breach of Covenants; True and Correct Representations and Warranties. (i) The representations and warranties made by the Company in Sections 4.1, 4.2, 4.3 and 4.4 of this Agreement shall be true and correct in all respects (other than for such failures to be true and correct as are de minimis in effect and, to the extent applicable, are cured by a proper calculation of the Applicable Per Share Merger Consideration), on and as of the date of this Agreement and at and as of the Closing as though such representations and warranties were made on and as of such time (except for such representations and warranties that speak specifically as of the date hereof or as of another date, which shall be true and correct as of such date), (ii) the representations and warranties made by the Company set forth in this Agreement (other than those specified in clause (i) above) that are qualified by a “Material Adverse Effect” or “materiality” qualification shall be true and correct in all respects as so qualified on and as of the date of this Agreement and at and as of the Closing as though such representations and warranties were made on and as of such time (except for such representations and warranties that speak specifically as of the date hereof or as of another date, which shall be true and correct as of such date) and (iii) the representations and warranties made by the Company set forth in this Agreement (other than those specified in clause (i) above) that are not qualified by a “Material Adverse Effect” or “materiality” qualification shall be true and correct in all material respects in each case at and as of the date of this Agreement and at and as of the Closing Date with the same force and effect as if such representations and warranties had been made as of the Closing Date, except to the extent such representations and warranties are expressly made only as of an earlier date, in which case solely as of such earlier date. The Company shall in all material respects have complied with and performed all of the agreements and covenants required by this Agreement to be performed or complied with by each of them on or prior to the Closing Date.

(b) Delivery of Documents. Parent shall have received all documents and other items to be delivered thereby under Section 9.1 of this Agreement.

(c) No Legal Obstruction; Regulatory Consent. No suit, action or proceeding by any third party or Governmental Authority with respect to the transactions contemplated hereby shall be pending or threatened in writing and no order shall have been entered in any such suit, action or proceeding that would have the effect of (i) making any of the transactions contemplated by this Agreement or the Transaction Documents illegal, (ii) otherwise preventing the consummation of such transactions or (iii) imposing limitations on such transactions and/or the ability of any party hereto to

 

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perform its obligations hereunder or operate the Business, the Company or any Subsidiary thereof after the Closing. All consents, approvals and actions of, filings with and notices to any Governmental Authority as listed or as required to be listed on Schedule 4.3(a) and necessary to permit Parent, Merger Sub and the Company to perform their obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby shall have been duly obtained, made or given, in form and substance reasonably satisfactory to Parent, and all terminations or expirations of waiting periods imposed by any Governmental Authority necessary for the consummation of the transactions contemplated by this Agreement and the Transaction Documents, including under the HSR Act, shall have occurred.

(d) No Material Adverse Effect. There shall not have occurred a Material Adverse Effect on the Company.

(e) Contracts and Permits. The Company shall have delivered to Parent all consents (in form and substance acceptable to Parent) to the consummation of the transactions contemplated under this Agreement and the Transaction Documents as are required under any Contract or Permit listed on Schedule 8.1(e).

(f) Payoff Letters and Lien Releases. Parent shall have received the Payoff Letters 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) Employment Agreements. The employees of the Company designated by Parent shall, on or prior to the date hereof, have entered into employment and/or retention agreements with the Company in form and substance reasonably acceptable to the Parent, including that the effectiveness of any such agreement is conditioned upon the Closing occurring.

(h) Resignations of Directors and Officers. Such members of the boards of directors 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 and/or officers.

(i) Release Agreement. Credit Suisse shall have executed and delivered to the Company a Release Agreement substantially in the form of Exhibit 8.1(i) attached hereto.

(j) Vested Company Options. Immediately prior to the Closing, all Vested Company Options shall either have been exercised for promissory notes in form and substance reasonably satisfactory to Parent, or shall be subject to duly executed and delivered Option Cancellation Agreements.

(k) Shareholder Approval. This Agreement and the consummation of the transactions contemplated hereby shall have been approved and adopted, and the Merger shall have been duly approved, by the requisite vote under the GCL and the Company’s Articles of Incorporation, by the Shareholders.

 

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(l) Dissenting Shares. Dissenting Shares shall comprise not more than 10% of the outstanding Company Stock immediately prior to the Effective Time.

(m) Warrant Cancellations. Agreements from all Warrant Holders relating to the cancellation of Warrants as provided in Section 3.6 hereof shall have been delivered to Parent.

(n) Notices. All notice periods under any Warrant or Company Option shall have lapsed or been waived.

(o) D&O Tail Policy. The Company shall have acquired (with premiums payable by Parent) “tail” coverage with respect to director and officer liability insurance coverage for the individuals who were officers and directors of the Company and each of its Subsidiaries immediately prior to Closing, such coverage to extend six (6) years from the Closing Date.

(p) Series B-1 Stock. The Company shall have provided evidence of the conversion into Common Stock of each outstanding share of Series B-1 Stock, in form and substance acceptable to Parent in its sole discretion.

Section 8.2 Conditions Precedent to Obligations of the Company. The obligations of the Company under this Agreement to consummate the transactions contemplated hereby will be subject to the satisfaction, at or prior to the Closing, of all the following conditions, any one or more of which may be waived in whole or in part in writing in the sole discretion of the Company:

(a) No Breach of Covenants; True and Correct Representations and Warranties. (i) The representations and warranties by Parent and Merger Sub contained in Sections 5.1 and 5.2 of this Agreement shall be true and correct in all respects (other than for such failures to be true and correct as are de minimis in effect), on and as of the date of this Agreement and at and as of the Closing as though such representations and warranties were made on and as of such time (except for such representations and warranties that speak specifically as of the date hereof or as of another date, which shall be true and correct as of such date), (ii) the representations and warranties made by the Parent and Merger Sub set forth in this Agreement (other than those specified in clause (i) above) that are qualified by a “Material Adverse Effect” or “materiality” qualification shall be true and correct in all respects as so qualified on and as of the date of this Agreement and at and as of the Closing as though such representations and warranties were made on and as of such time (except for such representations and warranties that speak specifically as of the date hereof or as of another date, which shall be true and correct as of such date) and (iii) the representations and warranties made by the Parent and Merger Sub set forth in this Agreement (other than those specified in clause (i) above) that are not qualified by a “Material Adverse Effect” or “materiality” qualification shall be true and correct in all material respects in each case at and as of the date of this Agreement and at and as of the Closing Date with the same force and effect as if such representations and warranties had been made as of the Closing Date, except to the extent such representations and warranties are expressly made only as of an earlier date, in

 

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which case solely as of such earlier date. Parent and Merger Sub shall in all material respects have complied with and performed all of the agreements and covenants required by this Agreement to be performed and complied with by each of them on or prior to the Closing Date.

(b) Delivery of Documents. The Company shall have received all documents and other items to be delivered thereby under Section 9.2 of this Agreement.

(c) No Legal Obstruction; Regulatory Consent. No suit, action or proceeding by any third party or Governmental Authority with respect to the transactions contemplated hereby shall be pending or threatened in writing and no order shall have been entered in any such suit, action or proceeding that would have the effect of (i) making any of the transactions contemplated by this Agreement or the Transaction Documents illegal, (ii) otherwise preventing the consummation of such transactions or (iii) imposing limitations on such transactions and/or the ability of any party hereto to perform its obligations hereunder or operate the Business, the Company or any Subsidiary thereof after the Closing. All consents, approvals and actions of, filings with and notices to any Governmental Authority necessary to permit Parent and the Company to perform their obligations under this Agreement and the Transaction Documents 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 Authority necessary for the consummation of the transactions contemplated by this Agreement and the Transaction Documents, including under the HSR Act, shall have occurred.

(d) Shareholder Approval. This Agreement and the consummation of the transactions contemplated hereby shall have been approved and adopted, and the Merger shall have been duly approved, by the requisite vote under the GCL and the Company’s Articles of Incorporation, by the Shareholders.

Section 8.3 Termination.

(a) Termination of Agreement. This Agreement may be terminated and abandoned at any time prior to the consummation of the Closing under the following described circumstances:

(i) upon the written consent of Parent and the Company;

(ii) by Parent, if the conditions set forth in Section 8.1 hereof shall not be fully satisfied (unless such failure to satisfy results primarily from Parent itself breaching any representation, warranty or covenant contained in this Agreement) or waived by Parent, or if the Closing shall not have occurred on or before March 15, 2007 (unless due to a default by Parent hereunder); or

(iii) by the Company, if the conditions set forth in Section 8.2 hereof shall not be fully satisfied (unless such failure to satisfy results primarily from the Company breaching any representation, warranty or covenant contained in this Agreement) or waived by the Company, or if the Closing shall not have occurred on or before March 15, 2007 (unless due to a default by the Company hereunder).

 

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(b) Effect of Termination. If any party terminates this Agreement pursuant to this Section 8.3, this Agreement shall become null and void, and all rights and obligations of the parties hereunder shall terminate without any liability of any party to any other party. Notwithstanding any other provision in this Agreement to the contrary, upon termination of this Agreement pursuant to Section 8.3(a)(ii) or (iii), the Company will remain liable to Parent for any breach of this Agreement by the Company existing at the time of such termination, and Parent will remain liable to the Company for any breach of this Agreement by Parent existing at the time of such termination, and the Company or Parent, as the case may be, may seek such remedies, including damages and fees of attorneys, against the other with respect to any such breach as are provided in this Agreement or as are otherwise available at law or in equity.

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