Due Organization; No Subsidiaries. (a) Each of Parent and Merger Sub is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware, and has all necessary corporate power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used; and (iii) to perform its obligations under all Contracts by which it is bound, except where the failure to have such power or authority would not reasonably be expected to prevent or materially delay the ability of Parent and Merger Sub to consummate the Contemplated Transactions. Since the date of its incorporation, Merger Sub has not engaged in any activities other than activities incident to its formation or in connection with or as contemplated by this Agreement.
Due Organization; No Subsidiaries. (a) The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of Delaware and has all necessary corporate power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used; and (iii) to perform its obligations under all Contracts by which it is bound.
Due Organization; No Subsidiaries. (a) Each of Parent and Merger Sub is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware, and has all necessary corporate power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used; and (iii) to perform its obligations under all Contracts by which it is bound. Since the date of its incorporation, Merger Sub has not engaged in any activities other than activities incident to its formation or in connection with or as contemplated by this Agreement.
Due Organization; No Subsidiaries. Each of the Target Companies is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation. Each of the Target Companies is qualified, authorized, registered or licensed to do business as a foreign limited liability company in each jurisdiction in which the failure to so qualify would have a material adverse effect on any of the Target Companies. Each of the Target Companies is qualified to do business and is in good standing as a foreign corporation in each of the jurisdictions listed in Part 2.1 of the Target Disclosure Schedule. None of the Target Companies has any subsidiaries, and none of the Target Companies owns, beneficially or otherwise, any shares or other securities of, or any direct or indirect interest of any nature in, any other Entity. None of the Target Companies has ever conducted any business under or otherwise used, for any purpose or in any jurisdiction, any fictitious name, assumed name, trade name or other name, other than those set forth in the recitals to this Agreement.
Due Organization; No Subsidiaries. (a) Each of TPB and Merger Sub is duly organized, validly existing, and in good standing under the Laws of Delaware, and has all necessary organizational power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used; and (iii) to perform its obligations under all Contracts by which each is bound. Since the date of its formation, Merger Sub has not engaged in any activities other than activities incident to its formation or in connection with or as contemplated by this Agreement.
Due Organization; No Subsidiaries. 16 3.2 Organizational Documents 16 3.3 Authority; Binding Nature of Agreement. 16 3.4 Vote Required 17 3.5 Non-Contravention; Consents. 17 3.6 Capitalization. 18 3.7 No Financial Advisors 18 3.8 Valid Issuance 18 3.9 Opinion of Financial Advisor 18 3.10 Tax Treatment of Merger Sub 19 3.11 Disclaimer of Other Representations or Warranties. 19 CERTAIN COVENANTS OF THE PARTIES 19 4.1 Operation of SDI’s Business. 19 4.2 Divestiture 20 4.3 Access and Investigation. 21 4.4 SDI Acquisition Proposals. 21 4.5 TPB Acquisition Proposals. 21 4.6 Notification of Certain Matters. 22 ADDITIONAL AGREEMENTS OF THE PARTIES 22 5.1 Registration Statement; Proxy Statement. 22 5.2 SDI Superior Offer 24 5.3 TPB Superior Offer 24 5.4 Regulatory Approvals. 25 5.5 Stock Option Matters. 26 5.6 Indemnification of Officers and Directors. 26 5.7 Additional Agreements 27 5.8 Disclosure 27 5.9 Listing 27 5.10 Tax Matters. 27 5.11 Termination of Certain Agreements and Rights 28 5.12 Section 16 Matters 28 -ii- TABLE OF CONTENTS (continued) Page 5.13 Further Assurances 28 5.14 Takeover Statutes 28 5.15 Stockholder Litigation 28 5.16 Interim Lock-up 29 5.17 Fees and Expenses 29 CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 29 6.1 Effectiveness of Registration Statement 29 6.2 No Restraints 29 6.3 Stockholder Approval 29 6.4 Listing 29 6.5 Regulatory Approvals 29 ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF TPB AND MERGER SUB 29 7.1 Accuracy of Representations 29 7.2 Performance of Covenants 30 7.3 No SDI Material Adverse Effect 30 7.4 Agreements and Documents 30 7.5 FIRPTA Certificate 30 7.6 SDI Stockholder Approval 30 7.7 Closing Tax Opinions 30 7.8 Net Liabilities Estimate 30 ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF SDI 30 8.1 Accuracy of Representations 31 8.2 Performance of Covenants 31 8.3 No TPB Material Adverse Effect 31 8.4 TPB Closing Certificate 31 8.5 Merger Sub Approval. 31 8.6 Closing Tax Opinions 31 TERMINATION 31 9.1 Termination 31 9.2 Effect of Termination 32 9.3 Termination Fee 32 MISCELLANEOUS PROVISIONS 32 10.1 Amendment 32 10.2 Waiver. 32 TABLE OF CONTENTS (continued) Page
Due Organization; No Subsidiaries. (a) Each of Parent and Merger Sub is a limited company duly incorporated and validly existing under the Laws of the State of Israel, is not a “breaching company” under the Companies Law, and has all necessary corporate power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used; and (iii) to perform its obligations under all Contracts by which it is bound, except where the failure to have such power or authority would not reasonably be expected to prevent or materially delay the ability of Parent and Merger Sub to consummate the Contemplated Transactions. Since the date of its incorporation, Merger Sub has not engaged in any activities other than activities incident to its formation or in connection with or as contemplated by this Agreement.
Due Organization; No Subsidiaries. (a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all corporate power and authority required: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all Company Contracts.
Due Organization; No Subsidiaries. (a) Each of Parent and its subsidiaries is an Entity duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of formation, and has all necessary corporate power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used; and (iii) to perform its obligations under all Contracts by which it is bound, except where the failure to have such power or authority would not reasonably be expected to prevent or materially delay the ability of Parent and Merger Sub to consummate the Contemplated Transactions. Parent is the sole stockholder of Merger Sub. Merger Sub was formed solely for the purposes of engaging in the transactions contemplated by this Agreement. Since the date of its incorporation, Merger Sub has not engaged in any activities other than activities incident to its formation or in connection with or as contemplated by this Agreement.
Due Organization; No Subsidiaries. Etc. 9 2.2 Articles of Incorporation and Bylaws; Records. 9 2.3 Capitalization, Etc. 10 2.4 Financial Statements. 11 2.5 Absence of Changes. 12 2.6 Title to Assets 14 2.7 Bank Accounts; Receivables. 14 2.8 Equipment; Leasehold. 15 2.9 Proprietary Assets. 15 2.10 Contracts. 17 2.11 Liabilities. 18 2.12 Compliance with Legal Requirements. 19 2.13 Governmental Authorizations. 19 2.14 Tax Matters. 19 2.15 Employee and Labor Matters; Benefit Plans. 20 2.16 Environmental Matters. 22 2.17 Product Warranty; Performance of Services 22 2.18 Insurance. 22 2.19 Related Party Transactions. 23 2.20 Legal Proceedings; Orders. 23 2.21 Authority; Binding Nature of Agreement. 23 2.22 Non-Contravention; Consents. 24 2.23 Full Disclosure. 24
