ZBRA » Topics » AND MERGER SUB

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

AND MERGER SUB

Parent and Merger Sub jointly and severally represent and warrant to the Company as of the date hereof as follows:

3.1      Organization; Standing and Power; Charter Documents; Subsidiaries. Parent and each of its Subsidiaries is a corporation or other entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, has the requisite corporate or limited liability company or similar power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary other than in such jurisdictions where the failure to be so qualified or licensed or to be in good standing would not reasonably be expected to have a Material Adverse Effect on Parent.

3.2      Merger Sub.  Parent has delivered or made available to the Company a complete and correct copy of the Limited Liability Company Agreement of Merger Sub (the “Merger Sub Operating Agreement”). The authorized share capital of Merger Sub consists of one limited liability company member interest which is issued and outstanding as of the date hereof. Parent is the sole member of Merger Sub and is the legal and beneficial owner of such limited liability company member interest. Merger Sub was formed by counsel to Parent at the direction of Parent solely for purposes of effecting the Merger and the other transactions contemplated hereby. Except as contemplated by this Agreement, Merger Sub does not hold, nor has it held, any material assets or incurred any material liabilities nor has Merger Sub carried on any business activities other than in connection with the Merger and the transactions contemplated by this Agreement. The limited liability company member interest of Merger Sub has been duly authorized and validly issued, is fully paid and nonassessable and is not subject to any preemptive rights.

3.3      Authority; Non-Contravention; Necessary Consents.

  (a)      Authority.  Each of Parent and Merger Sub has all requisite corporate or limited liability company power and authority to enter into this Agreement and the other agreements listed as exhibits hereto or otherwise referenced herein and to be executed by them in connection with the transactions contemplated hereby, and to consummate the transactions contemplated hereby, including the Merger. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate and member or stockholder action on the part of Parent, Merger Sub and their Affiliates (including any direct or indirect entity controlling Parent or Merger Sub) and no other corporate or member or stockholder proceedings on the part of Parent or Merger Sub or

 

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any of their Affiliates (including any direct or indirect entity controlling Parent or Merger Sub) are necessary to authorize the execution and delivery of this Agreement or to consummate the Merger and the other transactions contemplated hereby, subject only to the approval and adoption of this Agreement by Parent as Merger Sub’s sole member and the filing of the Certificate of Merger pursuant to Delaware Law. This Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due execution and delivery by the Company and the Members’ Representative, constitutes a valid and binding obligation of Parent, enforceable against Parent and Merger Sub in accordance with its terms, except (i) as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Legal Requirements affecting the rights of creditors generally and general equitable principles (whether considered in a proceeding in equity or at law), and (ii) as the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of a court of competent jurisdiction before which any proceeding may be brought.

  (b)      Board Approval.  The Board of Directors of Parent has, by resolutions duly adopted at a meeting duly called and held (which resolutions have not been subsequently rescinded or modified in any way) (i) determined the Merger to be advisable and (ii) approved this Agreement and the transactions contemplated thereby, including the Merger. Parent has approved the Merger and this Agreement as the sole member of Merger Sub.

  (c)      Non-Contravention.  The execution and delivery of this Agreement by Parent and Merger Sub does not, and performance of this Agreement by Parent will not: (i) conflict with or violate in any material respect the applicable governing documents of Parent or the Merger Sub Operating Agreement or any governing documents of any Subsidiary of Parent; (ii) subject to compliance with the requirements set forth in Section 3.3(d), conflict with or violate any material Legal Requirement applicable to Parent, Merger Sub or any of Parent’s other Subsidiaries or by which Parent, Merger Sub or any of Parent’s other Subsidiaries or any of their respective properties is bound or affected; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair Parent’s rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the properties or assets of Parent or any of its Subsidiaries pursuant to any Contract to which Parent or any of its Subsidiaries is a party, except in the case of the foregoing clauses (ii) and (iii) as would not reasonably be expected to be material to the Parent and its Subsidiaries, taken as a whole.

  (d)      Necessary Consents.  No consent, approval, order or authorization of, or registration, declaration or filing with any Governmental Entity is required to be obtained or made by Parent or Merger Sub in connection with the execution and delivery of this Agreement or the consummation of the Merger and other transactions contemplated hereby, except for the Necessary Consents (other than those consents, approvals, orders, authorizations, registrations, declarations or filings set forth in Section 2.4(d) of the Company Disclosure Letter which relate solely to the Company’s or its Subsidiaries’ obligations).

3.4      Compliance; Permits.  Neither Parent nor any of its Subsidiaries is in conflict with, or in default or in violation of, in any material respect, any Legal Requirement applicable

 

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to Parent or any of its Subsidiaries or by which Parent or any of its Subsidiaries or any of their respective businesses or properties is bound or affected. To the Knowledge of Parent, as of the date of this Agreement, neither Parent nor any of its Subsidiaries, nor any executive officer or director of Parent or any of its Subsidiaries, is under investigation by any Governmental Entity related to the conduct of Parent’s or any of its Subsidiaries’ business. There is no judgment, injunction, order or decree binding upon Parent or any of its Subsidiaries which has or would reasonably be expected to have the effect of prohibiting or materially impairing the business of Parent or any of its Subsidiaries.

  3.5      Litigation.  As of the date hereof, there are no material claims, suits, actions, demand letters, judicial, administrative or regulatory complaints, charges, proceedings or hearings, notices of violation or investigations before any court, governmental department, commission, agency, arbitrator, instrumentality or authority pending or, to the Knowledge of the Parent, Threatened against the Parent or any of its Subsidiaries or any of their respective properties, or any of their executive officers and directors in connection with his or her status as a director or executive officer of such entities that seeks to restrain or enjoin the consummation of the transactions contemplated hereby or which would have a Material Adverse Effect on Parent.

  3.6      Availability of Funds.  Parent currently has access to sufficient immediately available funds in cash or cash equivalents, and will at the Closing have sufficient immediately available funds, in cash, to pay the Aggregate Merger Consideration and any other amounts to be paid by Parent or Merger Sub hereunder.

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