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abridged | contract_140 | Section 6.3 Conditions to Obligations of Realty Income. <omitted>
(iii) the other representations and warranties of VEREIT set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (Page 39) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
abridged | contract_144 | SECTION 7.02. Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are further subject to the following conditions:(a) Representations and Warranties. <omitted> (ii) each of the other representations and warranties (excluding those representations and warranties specified in the preceding clause (i) of this Section 7.02(a)) of the Company in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on the Closing Date, except to the extent any such other representations and warranties expressly relate to an earlier date (in which case such other representations and warranties shall be true and correct on and as of such earlier date), in each case determined without regard to qualifications as to materiality or Company Material Adverse Effect, unless, for purposes of this clause (ii), the failure of any such other representations and warranties to be so true and correct has not resulted in, and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect. (Page 72) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Takeover Statutes, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
abridged | contract_144 | SECTION 7.02. Conditions to Obligations of Parent and Sub. <omitted> (ii) each of the other representations and warranties <omitted> of the Company in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date (Page 72) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Takeover Statutes, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
abridged | contract_148 | Section 6.3 Conditions to Obligations of Parent. The obligation of Parent to effect the Merger is subject to the satisfaction or waiver by Parent in writing, at or prior to the Closing, of the following additional conditions: <omitted> (a) Company Representations and Warranties. <omitted> (iv) the other representations and warranties of the Company set forth in this Agreement shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (iv), where the failure of such representations and warranties to be so true and correct (disregarding all qualifications or limitations as to “materiality,” “Material Adverse Effect” and words of similar import set forth therein) would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (Page 83) | Capitalization-Other, Approval, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
abridged | contract_148 | Section 6.3 Conditions to Obligations of Parent. <omitted> the other representations and warranties of the Company set forth in this Agreement shall be true and correct <omitted> as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (Page 83) | Capitalization-Other, Approval, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
abridged | contract_145 | Section 6.2 Additional Conditions to Central’s and Merger Sub’s Obligations. The respective obligations of Central and Merger Sub to consummate the Merger are subject to the satisfaction or, to the extent permitted by Law, the waiver by Central and Merger Sub on or prior to the Effective Time of each of the following conditions: <omitted> (b) The representations and warranties of East contained <omitted> (iii) in this Agreement (other than the representations and warranties of East set forth in the first sentence of Section 2.1(a), Section 2.1(c), Section 2.2, Section 2.4 and Section 2.8(b)) shall be true and correct (without giving effect to any limitation as to “materiality” or “East Material Adverse Effect” set forth in any individual such representation or warranty) as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except (in the case of this clause (iii)) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “East Material Adverse Effect” set forth in any individual such representation or warranty) would not reasonably be expected to have, individually or in the aggregate, an East Material Adverse Effect; (Page 94) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
abridged | contract_145 | Section 6.2 Additional Conditions to Central’s and Merger Sub’s Obligations. <omitted> (b) The representations and warranties of East contained <omitted> (iii) in this Agreement (other than the representations and warranties of East set forth in the first sentence of Section 2.1(a), Section 2.1(c), Section 2.2, Section 2.4 and Section 2.8(b)) shall be true and correct <omitted> as of the date of this Agreement and as of the Closing Date (Page 94) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
abridged | contract_150 | 5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. <omitted> (iii) the representations and warranties of the Company set forth in this Agreement (other than those representations and warranties referred to in the foregoing clauses (i) and (ii)) shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and accurate as of such particular date or period of time), except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in, a Company Material Adverse Effect; provided, however, that, in the case of this clause (iii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded. (Page 83) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Takeover Statutes, Rights Agreement | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
abridged | contract_150 | 5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (iii) the representations and warranties of the Company set forth in this Agreement <omitted> shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time (Page 83) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Takeover Statutes, Rights Agreement | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Approval | Accuracy of Target R&W Closing Condition | 10-0 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 4.01. Corporate Existence and Power. <omitted>
Section 4.02. Corporate Authorization. <omitted> The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by each of Parent and Merger Sub, this Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except insofar as such enforceabilitymay be limited by bankruptcy, insolvency, reorganization, moratorium or other Applicable Laws of general applicability relating to or affecting creditor’s rights, or by principles governing the availability of equitable remedies, whether considered in suit, action or proceeding at law or in equity (collectively, the “Enforceability Exceptions”)). 22 (b) At a meeting duly called and held, the Board of Directors has <omitted> (ii) approved, adopted and declared advisable this Agreement and the transactions contemplated hereby <omitted>
Section 4.05. Capitalization. <omitted>
Section 4.18. Tax <omitted>
Section 4.22. Finders’ Fees. <omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) the representations and warranties of the Company contained in Section 4.01, Section 4.02 , Section 4.05(b), Section 4.05(c), Section 4.18 and Section 4.22 (disregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall be true in all material respects at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), (c) the representations and warranties of the Company contained in Section 4.05(a) (disregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall be true and correct at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), except where failure to be so true and correct would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the
aggregate, that is more than $2,500,000;
70
(d) Other than representations and warranties of the Company listed in Section 9.02(b) and Section 9.02(c), the representations and warranties of the Company contained in this Agreement (disregarding all materiality, Company Material Adverse Effect or similar qualifications contained therein) shall be true in all respects at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Pages 32-33) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_50 | 8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. The obligations of Parent, MergerCo 1 and MergerCo 2 to effect the Mergers are further subject to the satisfaction (or written waiver, if permissible under applicable Law), by the Parent (on behalf of the Parent, MergerCo 1and MergerCo 2), as of the Closing, of each of the following conditions: (a) Representations and Warranties <omitted> (iii) all other representations and warranties of the Paired Entities set forth in this Agreement shall be true and correct in all respects (without regard to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date, as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or time, in which case such representations and warranties need only be so true and correct as of such specific date or time), except where the failure or failures of all such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect. (Page 77)
8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. <omitted> (iii) all other representations and warranties of the Paired Entities set forth in this Agreement shall be true and correct in all respects <omitted> except where the failure or failures of all such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect. (Page 77)
5.3 Capitalization. (a) The authorized capital stock of the Company consists solely of 3,500,000,000 shares of Company Common Stock, 350,000,000 shares ofCompany Preferred Stock of which 25,000 shares are designated as Series A Preferred Stock, 3,500,000,000 shares of excess stock, <omitted> 8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. The obligations of Parent, MergerCo 1 and MergerCo 2 to effect the Mergers are further subject to the satisfaction (or written waiver, if permissible under applicable Law), by the Parent (on behalf of the Parent, MergerCo 1and MergerCo 2), as of the Closing, of each of the following conditions: (a) Representations and Warranties. (i) the representations and warranties set forth in Sections 5.3(a) <omitted> shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or time, in which case such representations and warranties need only be so true and correct as of such specific date or time) (Page 77)
5.3 Capitalization. (a) The authorized capital stock of the Company consists solely of 3,500,000,000 shares of Company Common Stock, 350,000,000 shares ofCompany Preferred Stock of which 25,000 shares are designated as Series A Preferred Stock, 3,500,000,000 shares of excess stock, <omitted> 8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. <omitted> . (i) the representations and warranties set forth in Sections 5.3(a) <omitted> shall be true and correct in all material respects (Page 77)
5.3 Capitalization. <omitted>
(i) As of the date of this Agreement, there is no outstanding Indebtedness for borrowed money of the Paired Entities and the Paired EntitiesSubsidiaries in excess of $10,000,000 in principal amount, other than Indebtedness in the principal amounts identified by instrument in Section 5.3(i) of the PairedEntities Disclosure Schedule.
5.9 Absence of Certain Changes. Since December 31, 2020, through the date of this Agreement, (i) there has not been any event <omitted> that has had or would reasonably be expected to have a Company Material Adverse Effect, <omitted> 8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. The obligations of Parent, MergerCo 1 and MergerCo 2 to effect the Mergers are further subject to the satisfaction (or written waiver, if permissible under applicable Law), by the Parent (on behalf of the Parent, MergerCo 1and MergerCo 2), as of the Closing, of each of the following conditions: (a) Representations and Warranties. (i) the representations and warranties set forth in Sections <omitted> 5.3(c), 5.3(e) and 5.3(i), shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or time, in which case such representations and warranties need only be so true and correct as of such specific date or time), (ii) the representation and warranty set forth in Section 5.9(i) shall be true and correct in all respects as of the date hereof and as of the Closing Date, as though made on and as of the Closing Date (Page 77)
5.3 Capitalization. <omitted>
(i) As of the date of this Agreement, there is no outstanding Indebtedness for borrowed money of the Paired Entities and the Paired EntitiesSubsidiaries in excess of $10,000,000 in principal amount, other than Indebtedness in the principal amounts identified by instrument in Section 5.3(i) of the PairedEntities Disclosure Schedule.
5.9 Absence of Certain Changes. Since December 31, 2020, through the date of this Agreement, (i) there has not been any event <omitted> that has had or would reasonably be expected to have a Company Material Adverse Effect, <omitted>
8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. <omitted> (i) the representations and warranties set forth in <omitted> 5.3(c), 5.3(e) and 5.3(i), shall be true and correct in all material respects <omitted> (ii) the representation and warranty set forth in Section 5.9(i) shall be true and correct in all respects (Page 77) | Capitalization-Other, No MAE, Other | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 4.01. Corporate Existence and Power. <omitted>
Section 4.02. Corporate Authorization. <omitted> This Agreement constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. (b) At a meeting duly called and held, the Company’s Board of Directors has (i) determined that this Agreement and the transactions contemplated hereby are fair to and in the best interests of the Company’s shareholders, (ii) adopted this Agreement and the transactions contemplated hereby and (iii) resolved, subject to Section 6.03, to recommend approval of this Agreement by its shareholders (such recommendation, the “Company Board Recommendation”). <omitted>
Section 4.05. Capitalization. <omitted>
Section 4.10. Absence of Certain Changes. <omitted> (b) Since the Company Balance Sheet Date, there has not been any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. <omitted>
Section 4.20 Tax <omitted>
Section 4.22. Product Liability. <omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Subsidiary. <omitted> (a) (i) the representations and warranties of the Company set forth in Section 4.01(i), Section 4.02, Section 4.20 and Section 4.22 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects as of the Closing Date as if made at and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true in all material respects only as of such time), (ii) the representations and warranties of the Company set forth in Section 4.05(a), (d), (e) and (f) shall be true and correct in all but de minimis respects as of the Closing Date as if made at and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true in all material respects only as of such time) (iii) the representation and warranty of the Company set forth in Section 4.10(b) shall be true in all respects as of the Closing Date as if made at and as of the Closing Date and (iv) the other representations and warranties of the Company set forth in Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct as of the Closing Date as if made at and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), in the case of this clause (iii) with only such exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (Pages 62-63) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | 3.2 Capital Stock <omitted>
(b) <omitted> All of the
shares of capital stock or other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear of all Liens (other than Permitted Liens).
3.4 Authority. <omitted> (a) <omitted>
This Agreement has been duly executed and delivered by the Company and,
assuming the due authorization, execution
and delivery by Parent and Purchaser, constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by (i) the laws of general application relating to bankruptcy, insolvency, reorganization and moratorium and similar Laws affecting the enforcement of creditors’ rights or remedies in general as from time to time in effect or (ii) the exercise by courts of equity powers (the “Bankruptcy and Equity Exception”).
(b) The Company Board, at a meeting duly called and held at which all of the directors of the Company were present, and by the
unanimous vote of all directors of the Company, duly adopted resolutions which: (i) determined that the terms of this Agreement, and the Transactions are advisable and fair to, and in the best interest of the Company and the Company Stockholders; (ii) agreed that the Agreement shall be subject to Section 251(h) of the DGCL; (iii) approved the execution, delivery and performance by the
Company of this Agreement and the consummation of the Transaction
<omitted>
Section 3.15 Tax <omitted>
CONDITIONS TO THE OFFER
The obligation of Purchaser to accept for payment and pay for Company Shares validly tendered (and not withdrawn) pursuant to the Offer, subject to the rights and obligations of Purchaser to extend and/or amend the Offer in accordance with the terms and conditions of the Agreement, is subject to the satisfaction of the conditions set forth in clauses “(i)” through “(viii)” below. <omitted>
(ii) (a) the representations and warranties of the Company set forth in Sections 3.2(a) (first sentence only) and 3.2(b) (Capital Stock) of the Agreement shall have been accurate in all respects as of the Agreement Date and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date, except (other than a result of a willful breach by the Company) de minimis inaccuracies (it being understood that, for purposes of determining the accuracy of such representations and warranties, (1) any update of or modification to the Company Disclosure Letter made or purported to have been made after the Agreement Date shall be disregarded and (2) the accuracy of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this clause (a)) only as of such date; Annex I-1
(b) the representations and warranties of the Company set forth in Sections 3.1 (Organization, Standing and Power), 3.4 (Authority), 3.15 (Tax), 3.21 (Takeover Statutes), 3.23 (Brokers), 3.24 (No Vote Required) and 3.25 (first sentence only) (Opinion of Financial Advisor) of the Agreement shall have been accurate in all material respects as of the Agreement Date, and shall be accurate in all material respects at and as of the Offer Acceptance Time as if made on and as of such Closing Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (1) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (2) any update of or modification to the Company Disclosure Letter made or purported to have been made after the Agreement Date shall be disregarded and (3) the accuracy of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this clause (b)) only as of such date); (c) the representations and warranties of the Company set forth in clause “(b)” of the first sentence of Section 3.8 (Absence of Certain Changes or Events) shall have been accurate in all respects as of the Agreement Date and shall be accurate in all respects at and as of the Offer Acceptance Time as if made on and as of such time (it being understood that any update of or modification to the Company Disclosure Letter made or purported to have been made after the Agreement Date shall be disregarded); (d) the representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses “(a)”, “(b)” or “(c)” above) shall have been accurate in all respects as of the Agreement Date, and shall be accurate in all respects at and as of the Offer Acceptance Time as if made on and as of such time, except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively), do not constitute, and would not reasonably be expected to have, a Company Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (1) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (2) any update of or modification to the Company Disclosure Letter made or purported to have been made after the Agreement Date shall be disregarded and (3) the accuracy of those representations or warranties that address matters only as of a specific date shall be measured only as of such date); (Pages 104-105) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | SECTION 4.01. Organization, Standing and Power. <omitted>
SECTION 4.03. Capital Structure. <omitted>
SECTION 4.04. Authority; Execution and Delivery; Enforceability. (a) <omitted> The Company Board, by a unanimous vote at a meeting duly called on or prior to the date of this Agreement at which a quorum of directors of the Company was present, adopted resolutions (i) approving this Agreement, the Merger and the Transactions <omitted>
SECTION 4.08. Absence of Certain Changes or Events. <omitted>
SECTION 4.14 Tax <omitted>SECTION 4.18. Brokers’ Fees and Expenses . <omitted>
SECTION 7.03. Conditions to Obligation of Parent. The obligation of Parent and Merger Sub to consummate the Merger is further subject to the following conditions: (a) Representations and Warranties . (i) The representations and warranties of the Company contained in this Agreement (except for the representations and warranties contained in Section <omitted> 4.01 (other than the second sentence of Section 4.01), Section 4.03, Section 4.04(a), Section 4.08(i), Section 4.14 and Section 4.18) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) at and as of the date of this Agreement 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 an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (ii) the representations and warranties of the Company contained in Section 4.01 (other than the second sentence of Section 4.01) , Section 4.03, Section 4.04(a), Section 4.14 and Section 4.18 shall be true and correct in all material respects at and as of the date of this Agreement 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 an earlier date, in which case as of such earlier date) and (iii) the representations and warranties of the Company contained in Section 4.08(i) shall be true and correct in all respects at and as of the date of this Agreement. Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. (Pages 56-57) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 4.01
Organization and Good Standing; Organizational Documents.
<omitted>
Section 4.02
Authority for Agreement.
<omitted>
This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and
delivery by Parent and Merger Sub, constitutes a legal, valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforcement thereof may be limited against the Company by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar Laws relating to or affecting creditors’ rights
generally, general equitable principles (whether
considered in a proceeding in equity or at law) and any implied covenant of good faith and fair dealing, or remedies in general, as from time to time in effect, or (b) the exercise by courts of equity
powers (the “Bankruptcy and Equity Exception”).
As of the date of this Agreement, the
Special
Committee and the Company Board of Directors (upon the unanimous
recommendation of the Special Committee) have adopted
resolutions
unanimously (i) determining that this Agreement, the Merger and the
other transactions contemplated hereby are fair,
advisable and in the best interests of the Company and the
Company Shareholders, (ii) approving and adopting this Agreement, the Merger and the other
transactions contemplated hereby
<omitted>
Section 4.18 Tax <omitted>
Section 4.22
Takeover Statutes.
<omitted>
Section 4.24
Brokers or Finders.
<omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger on the Closing Date are subject to the satisfaction (or waiver by Parent and Merger Sub) as of the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company (i) set forth in Section 4.01(a), Section 4.02, Section 4.03(a), Section 4.18, Section 4.22 and Section 4.24 (the “Company Fundamental Representations”) shall be true and correct both as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (except to the extent expressly made as of a specific date, in which case as of such specific date), in each case other than any de minimis inaccuracies with respect to Section 4.03(a) (Page 55) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 9.02. Conditions to the Obligations of Parent and Merger Subsidiary. <omitted>
(ii) (A) the representations and warranties of the Company contained in Section 4.01 (Organization, Good Standing and Qualification), Section 4.03 (Authority, Approval), Section 4.04(b)(i) (No Conflict), Section 4.12 (No Shareholders Rights Plan; Takeover Statutes), Section 4.20 Tax, Section 4.20 (Opinion of Financial Advisor) and Section 4.21 (Finders’ Fees) hereof, shall be true and correct in all material respects, and Section 4.02(a) (Capital Structure), which shall be true and correct except for such inaccuracies as are de minimis (Page 73) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 6.3 Conditions to Obligations of Realty Income. <omitted> (i) The representations and warranties of VEREIT set forth in Section 3.1 clauses (a)(i) (Organization, Standing and Power), (b) (Capital Structure) (other than clause (i) thereof), (c)(i) (Authority), (m) (Board Approval), (n) (Tax), (o) (Vote Required), (u) (Investment Company Act of 1940), (v) (Brokers or Finders) and (w) (Opinions of VEREIT Financial Advisors) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (Page 39)
| Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 2.1 Due Organization; Subsidiaries. <omitted>
Section 2.2 Authority; Binding Nature of Agreement. <omitted> (b) The Lambda Board has unanimously (i) determined that this Agreement, the Integrated Mergers and the other transactions contemplated by this Agreement are in the best interests of, and are advisable to, Lambda and the Lambda Stockholders,(ii) approved and declared advisable this Agreement, the Integrated Mergers and the other transactions contemplated by this Agreement, <omitted>
Section 2.4 Capitalization. <omitted>
Section 2.6 SEC Filings; Financial Statements. <omitted> (b) The financial statements (including related notes, if any) contained in the Lambda SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC, and except that the unaudited financial statements may not have contained notes and were subject to normal and recurring year-end adjustments); and (iii) fairly presented in all material respects the consolidated financial position of Lambda and its consolidated Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of Lambda and its consolidated Subsidiaries for the periods covered thereby.For purposes of this Agreement, “Lambda Balance Sheet” means that audited consolidated balance sheet (and notes thereto) ofLambda and its consolidated Subsidiaries as of December 31, 2020 (the “Lambda Balance Sheet Date”) set forth in Lambda’s Annual Report on Form 10-K filed with the SEC on March 31, 2021, as amended on April 30, 2021.
Section 2.15 Tax <omitted>
Section 6.2 Additional Conditions to Pi’s Obligations. The obligations of Pi to consummate the Integrated Mergers are subject to the satisfaction or, to the extent permitted by Law, the waiver by Pi on or prior to the Effective Time of each of the following conditions: <omitted> (b) The representations and warranties of Lambda contained (i) in the first sentence of Section 2.1(a), Section 2.2(a), Section 2.2(c), Section 2.4(a), Section 2.4(c) and Section 2.15 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in each case, for de minimis inaccuracies, (ii) Section 2.6(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date) and (iii) in this Agreement (other than the representations and warranties of Lambda set forth in the first sentence of Section 2.1(a), Section 2.2(a), Section 2.2(c), Section 2.4(a), Section 2.4(c), Section 2.6(b) and Section 2.15) shall be true and correct as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except (in the case of this clause (iii)) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Lambda Material Adverse Effect” set forth in any individual such representation or warranty) would not reasonably be expected to have, individually or in the aggregate, a Lambda Material Adverse Effect; and (Page 89) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 2.1 Due Organization; Subsidiaries. <omitted>
Section 2.2 Authority; Binding Nature of Agreement. <omitted> (b) The East Board has unanimously <omitted> (ii) approved and declared advisable this Agreement, the Merger and the other transactions contemplated by this Agreement <omitted> (c) This Agreement has been duly executed and delivered by East and, assuming the due execution and delivery of this Agreement by Central and Merger Sub, constitutes the legal, valid and binding obligation of East, enforceable against East in accordance with its terms <omitted>
Section 2.4 Capitalization. <omitted> (d) <omitted> All of the outstanding shares of capital stock or other ownership interests of the East Subsidiaries that are direct or indirect wholly-owned Subsidiaries of East (A) have been validly issued and are fully paid (in the case of an interest in a limited partnership or a limited liability company, to the extent required under the applicable East Organizational Documents) and nonassessable (if such entity is a corporate entity) and (B) are owned by East, by one or more of the East Subsidiaries or by East and one or more of the East Subsidiaries, in each case free and clear of all Encumbrances. <omitted>
Section 2.8 Absence of Changes. <omitted> (Page 14)
Section 2.10 Tax <omitted>
Section 6.2
Additional Conditions to Central’s and Merger Sub’s Obligations.
The respective obligations of Central and Merger Sub to
consummate the Merger are subject to the satisfaction or, to the extent permitted by Law, the waiver by Central and Merger Sub on or prior to the Effective Time of each of the
following conditions:
<omitted>
(b) The representations and warranties of East contained (i) in the first sentence of Section 2.1(a), Section 2.1(c), Section 2.2, Section 2.4 and Section 2.10 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except for de minimis inaccuracies, (ii) Section 2.8(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date) (Page 94) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 3.3 Authorization; Enforceability <omitted> The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board. <omitted> The execution, delivery and performance of this Agreement by the Company, and the consummation by it of its obligations under this Agreement, have been authorized by all necessary corporate action, subject to the Company Shareholder Approval, and, subject to the receipt of the Requisite Regulatory Approvals and assuming the due authorization, execution and delivery of this Agreement by Nicolet, this Agreement constitutes a legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other Legal Requirements affecting creditors’ rights generally and subject to general principles of equity. <omitted>
Section 3.5 Capitalization <omitted>
Section 3.20 Tax <omitted>
Section 8.1 Accuracy of Representations and Warranties. For purposes of this Section 8.1, the accuracy of the representations and warranties of the Company set forth in this Agreement shall be assessed as of the date of this Agreement and as of the Closing Date (or such other date(s) as specified, to the extent any representation or warranty speaks as of a specific date). The representations and warranties set forth in Section 3.3, Section 3.5(a) and Section 3.20 shall be true and correct (except for inaccuracies which are de minimis in amount and effect). There shall not exist inaccuracies in the representations and warranties of the Company set forth in this Agreement (including the representations set forth in Section 3.3 and Section 3.5(a)) such that the aggregate effect of such inaccuracies has, or is reasonably likely to have, a Material Adverse Effect on the Company; provided that, for purposes of this sentence only, those representations and warranties which are qualified by references to “material” or “Material Adverse Effect” or to the “Knowledge” of any Person shall be deemed not to include such qualifications. (Pages 51-52) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | 4.1 Organization, Standing, and Power. <omitted>
4.2 Authority of SB; No Breach By Agreement. <omitted>
The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated herein, including the Merger, have been duly and validly authorized by all necessary corporate action in respect thereof on the part of SB, (including approval by at least a majority of the members of SB’s board of directors unaffiliated with any other party to the proposed transaction) <omitted> this Agreement represents a legal, valid, and binding obligation of SB, enforceable against SB in accordance with its terms <omitted>
4.3 Capital Stock. <omitted>
4.20 Tax <omitted>
4.24 Brokers and Finders; Opinion of Financial Advisor. <omitted>
8.2 Conditions to Obligations of Buyer. The obligations of Buyer to perform this Agreement and consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction of the following conditions, unless waived by Buyer pursuant to Section 10.6(a): (a) Representations and Warranties. For purposes of this Section 8.2(a), the accuracy of the representations and warranties of SB set forth in this Agreement shall be assessed as of the date of this Agreement and as of the Effective Time with the same effect as though all such representations and warranties had been made on and as of the Effective Time (provided, that representations and warranties which are confined to a specified date shall speak only as of such date). The representations and warranties set forth in Sections 4.1, 4.2(a), 4.2(b)(i), 4.3, 4.20 and 4.24 shall be true and correct (except for inaccuracies which are de minimis in amount or effect). There shall not exist inaccuracies in the representations and warranties of SB set forth in this Agreement (including the representations and warranties set forth in Sections 4.1, 4.2(a), 4.2(b)(i), 4.3, and 4.24) such that the aggregate effect of such inaccuracies has, or is reasonably likely to have, an SB Material Adverse Effect; provided, that for purposes of this sentence only, those representations and warranties which are qualified by references to “material” or “Material Adverse Effect” or to the “Knowledge” of any Person shall be deemed not to include such qualifications. (Page 25) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | Section 3.1 Representations and Warranties of Company. <omitted>
(a) Organization, Standing and Power. <omitted> (iv) All issued and outstanding shares of capital stock of, or other equity interests in, each Subsidiary of the Company are (i) wholly owned, directly or indirectly, by the Company <omitted>
(b) Capital Structure. <omitted>
(c) Authority; No Violation. (i) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement <omitted> This Agreement has been duly and validly executed and delivered by the Company and constitutes, subject to execution by Parent and Merger Sub, a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted>
(l) Absence of Certain Changes. (i) Since March 31, 2021, there have been no Effects which have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. <omitted>
(m) Board Approval. <omitted>
(n) Vote Required. <omitted>
(o) Tax. <omitted>
(u) Investment Company Act of 1940. <omitted>
(v) Brokers or Finders. <omitted>
(w) Opinion of Company Financial Advisor. <omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is subject to the satisfaction or waiver by Parent in writing, at or prior to the Closing, of the following additional conditions: (a) Company Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 3.1(l)(i) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, (ii) the representations and warranties of the Company set forth in Section 3.1(b)(i) shall be true and correct in all respects, except for any de minimis inaccuracies, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of
such date), (iii) the representations and warranties of the Company set forth in the first, fourth (to the extent relating to the Company) and fifth sentences of Section 3.1(a)(i), clause (i) of the first sentence of Section 3.1(a)(iv), the second sentence of Section 3.1(b)(ii), Section 3.1(b)(iii), Section 3.1(b)(iv), Section 3.1(b) (v), Section 3.1(c)(i), Section 3.1(m), Section 3.1(n), Section 3.1(o), Section 3.1(u), Section 3.1(v) and Section 3.1(w) shall be true and correct in all material respects, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), and (iv) the other representations and warranties of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (iv), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect) has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Pages 30-31) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_103 | SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction (or waiver by Parent and Merger Sub) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in this Agreement (other than (x) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) set forth in Section 3.1(a) (Organization and Qualification; Subsidiaries) with respect to the Company, Section 3.3 (Capitalization), Section 3.4 (Authority), Section 3.5(a)(i) (No Conflict with Organizational Documents), and clause (iii) of the first sentence and the last sentence of Section 3.1(b) (Ownership of Subsidiaries) and (y) the representations and warranties of the Company set forth in Section 3.9(a)(ii) (No Material Adverse Effect)), shall be true and correct in all respects (without giving effect to any “materiality,” “Material Adverse Effect” or similar qualifiers contained in any such representations and warranties) as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failures of any such representations and warranties to be so true and correct, in the aggregate, do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (Page 75)
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in this Agreement <omitted> shall be true and correct in all respects <omitted> except where the failures of any such representations and warranties to be so true and correct, in the aggregate, do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (Page 75)
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction (or waiver by Parent and Merger Sub) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted> (ii) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) <omitted> (B) set forth in Section 3.3 (Capitalization) shall be true and correct in all but de minimis respects, in each such case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly speaks as of an earlier date, in which case as of such earlier date) (Page 75)
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (ii) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) <omitted> (B) set forth in Section 3.3 (Capitalization) shall be true and correct in all but de minimis respects (Page 75)
SECTION 3.3 Capitalization. <omitted> (b) <omitted> Each of the outstanding Equity Securities of each of the Company’s subsidiaries and Joint Ventures is duly authorized, validly issued, fully paid and nonassessable and, with respect to the Company’s subsidiaries, all such Equity Securities are owned by the Company or another wholly-owned subsidiary of the Company and are owned free and clear of all Liens. <omitted>
SECTION 3.4 Authority. (a) <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> (b) All of the directors of the Company Board of Directors at a duly called and held meeting, unanimously <omitted> (ii) approved and adopted this Agreement and the transactions contemplated by this Agreement, including the Merger <omitted>
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction (or waiver by Parent and Merger Sub) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted> (ii) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) (A) set forth in Section 3.1(a) (Organization and Qualification; Subsidiaries) with respect to the Company, Section 3.4 (Authority), Section 3.5(a)(i) (No Conflict with Organizational Documents), and clause (iii) of the first sentence and the last sentence of Section 3.1(b) (Ownership of Subsidiaries) shall be true and correct in all material respects and (B) set forth in Section 3.3 (Capitalization) shall be true and correct in all but de minimis respects, in each such case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly speaks as of an earlier date, in which case as of such earlier date) and (iii) the representation and warranty of the Company set forth in Section 3.9(a)(ii) (No Material Adverse Effect) shall be true and correct in all respects as of the date of this Agreement; (Page 75)
SECTION 3.3 Capitalization. <omitted> (b) <omitted> Each of the outstanding Equity Securities of each of the Company’s subsidiaries and Joint Ventures is duly authorized, validly issued, fully paid and nonassessable and, with respect to the Company’s subsidiaries, all such Equity Securities are owned by the Company or another wholly-owned subsidiary of the Company and are owned free and clear of all Liens. <omitted>
SECTION 3.4 Authority. (a) <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> (b) All of the directors of the Company Board of Directors at a duly called and held meeting, unanimously <omitted> (ii) approved and adopted this Agreement and the transactions contemplated by this Agreement, including the Merger <omitted>
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (ii) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) (A) set forth in Section 3.1(a) (Organization and Qualification; Subsidiaries) with respect to the Company, Section 3.4 (Authority), Section 3.5(a)(i) (No Conflict with Organizational Documents), and clause (iii) of the first sentence and the last sentence of Section 3.1(b) (Ownership of Subsidiaries) shall be true and correct in all material respects and (B) set forth in Section 3.3 (Capitalization) shall be true and correct in all but de minimis respects <omitted> and (iii) the representation and warranty of the Company set forth in Section 3.9(a)(ii) (No Material Adverse Effect) shall be true and correct in all respects (Page 75) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_115 | Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger on the Closing Date are subject to the satisfaction (or waiver by Parent and Merger Sub) as of the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company <omitted> (ii) set forth in Article IV (other than the Company Fundamental Representations) shall be true and correct both as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (except to the extent expressly made as of a specific date, in which case as of such specific date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect; provided, however, that for purposes of determining the satisfaction of clause (ii) of this condition, no effect shall be given to any exception or qualification in such representations and warranties relating to “material,” “materiality” or “Company Material Adverse Effect.” (Page 55)
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. <omitted> (a) Representations and Warranties. The representations and warranties of the Company <omitted> (ii) set forth in Article IV (other than the Company Fundamental Representations) shall be true and correct <omitted> , except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect; (Page 55)
Section 4.03 Capitalization.
<omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger on the Closing Date are subject to the satisfaction (or waiver by Parent and Merger Sub) as of the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company (i) set forth in <omitted> Section 4.03(a), <omitted> shall be true and correct both as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (except to the extent expressly made as of a specific date, in which case as of such specific date), in each case other than any de minimis inaccuracies with respect to Section 4.03(a), (Page 55)
Section 4.03 Capitalization.
<omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. <omitted> (a) Representations and Warranties. The representations and warranties of the Company (i) set forth in <omitted> Section 4.03(a), <omitted> shall be true and correct <omitted> in each case other than any de minimis inaccuracies (Page 55)
Section 4.01
Organization and Good Standing; Organizational Documents.
<omitted>
Section 4.02
Authority for Agreement.
<omitted>
This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and
delivery by Parent and Merger Sub, constitutes a legal, valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforcement thereof may be limited against the Company by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar Laws relating to or affecting creditors’ rights
generally, general equitable principles (whether
considered in a proceeding in equity or at law) and any implied covenant of good faith and fair dealing, or remedies in general, as from time to time in effect, or (b) the exercise by courts of equity
powers (the “Bankruptcy and Equity Exception”).
As of the date of this Agreement, the
Special
Committee and the Company Board of Directors (upon the unanimous
recommendation of the Special Committee) have adopted
resolutions
unanimously (i) determining that this Agreement, the Merger and the
other transactions contemplated hereby are fair,
advisable and in the best interests of the Company and the
Company Shareholders, (ii) approving and adopting this Agreement, the Merger and the other
transactions contemplated hereby
<omitted>
Section 4.22
Takeover Statutes.
<omitted>
Section 4.24
Brokers or Finders.
<omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger on the Closing Date are subject to the satisfaction (or waiver by Parent and Merger Sub) as of the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company (i) set forth in Section 4.01(a), Section 4.02, Section 4.03(a), Section 4.22 and Section 4.24 (the “Company Fundamental Representations”) shall be true and correct both as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (except to the extent expressly made as of a specific date, in which case as of such specific date), in each case other than any de minimis inaccuracies with respect to Section 4.03(a) (Page 55)
Section 4.01
Organization and Good Standing; Organizational Documents.
<omitted>
Section 4.02
Authority for Agreement.
<omitted>
This Agreement <omitted> constitutes a legal, valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms, <omitted>
As of the date of this Agreement, the
Special Committee and the Company Board of Directors (upon the unanimous recommendation of the Special Committee) have adopted
resolutions unanimously <omitted> (ii) approving and adopting this Agreement, the Merger and the other
transactions contemplated hereby
<omitted>
Section 4.22
Takeover Statutes.
<omitted>
Section 4.24
Brokers or Finders.
<omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. <omitted> (a) Representations and Warranties. The representations and warranties of the Company (i) set forth in Section 4.01(a), Section 4.02, <omitted> Section 4.22 and Section 4.24 (the “Company Fundamental Representations”) shall be true and correct (Page 55) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Takeover Statutes | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_125 | Section 4.1 Corporate Existence and Power.
Section 4.2 Corporate Authorization. (a)The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions are within the Company’s corporate powers and, except for the required approval of the Company’s stockholders in connection with the consummation of the Merger, have been duly authorized by all necessary corporate action on the part of the Company. <omitted> This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted>
Section 4.20Brokers.
Section 4.21Opinion of Financial Advisor. <omitted>
Section 9.2 Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or waiver (where permissible pursuant to Applicable Law) of the following further conditions: <omitted>
(b) (i) each of the representations and warranties of the Company contained in Section 4.5(a), Section 4.5(b) and Section 4.5(c) shall be true and correct in all respects at and as of the Closing as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), except where the failure to be so true and correct in all respects would not reasonably be expected to result in any cost, expense, liability or other loss to the Company (or the Surviving Corporation) or Parent, individually or in the aggregate, in excess of $1,000,000), (ii) each of the representations and warranties of the Company contained in Section 4.1(a), Section 4.2, Section 4.5(d), Section 4.20 and Section 4.21 (disregarding, and without giving effect to, all materiality and Material Adverse Effect or similar qualifications contained therein) shall be true and correct in all material respects at and as of the Closing as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time) and (iii) each of the other the representations and warranties of the Company contained in this Agreement (disregarding, and without giving effect to, all materiality and Material Adverse Effect or similar qualifications contained therein) shall be true at and as of the Closing as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with only such exceptions to such other representations and warranties as have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (Pages 63-64) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_144 | SECTION 7.02. Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are further subject to the following conditions:(a) Representations and Warranties. <omitted> (ii) each of the other representations and warranties (excluding those representations and warranties specified in the preceding clause (i) of this Section 7.02(a)) of the Company in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on the Closing Date, except to the extent any such other representations and warranties expressly relate to an earlier date (in which case such other representations and warranties shall be true and correct on and as of such earlier date), in each case determined without regard to qualifications as to materiality or Company Material Adverse Effect, unless, for purposes of this clause (ii), the failure of any such other representations and warranties to be so true and correct has not resulted in, and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect. (Page 72)
SECTION 7.02. Conditions to Obligations of Parent and Sub. <omitted> (ii) each of the other representations and warranties <omitted> of the Company in this Agreement shall be true and correct <omitted> unless <omitted> the failure of any such other representations and warranties to be so true and correct has not resulted in, and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect. (Page 72)
SECTION 7.02. Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are further subject to the following conditions:(a) Representations and Warranties. <omitted> (i) The representations and warranties of the Company in Section 3.01 (Organization, Standing and Power), Section 3.02 (Company Subsidiaries; Equity Interests), Section 3.03(a), (b) <omitted> (Capital Structure), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.13 (Brokers and Other Advisors) and in Section 3.20 (Vote Required) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date, except to the extent that such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all but de minimis respects on and as of such earlier date) (Page 72)
SECTION 7.02. Conditions to Obligations of Parent and Sub. <omitted> The representations and warranties of the Company in <omitted> Section 3.03(a), (b) <omitted> (Capital Structure) <omitted> shall be true and correct in all but de minimis respects (Page 72)
SECTION 3.04. Authority; Execution and Delivery; Enforceability. <omitted> (b) The Board of Directors of the Company (the “Company Board”), at a meeting duly called and held at which all directors of the Company were present, duly and unanimously adopted resolutions (i) approving and declaring advisable this Agreement and the other Transaction Agreements, the Merger and the other Transactions and approving the execution, delivery and performance of this Agreement and the other Transaction Agreements <omitted> and (v) electing that the Merger not be subject to any “moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-takeover laws and regulations (collectively, “Takeover Laws”) of any jurisdiction that may purport to be applicable to this Agreement, which resolutions have not been rescinded, modified or withdrawn in any way.
SECTION 7.02. Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are further subject to the following conditions:(a) Representations and Warranties. <omitted> (i) The representations and warranties of the Company in Section 3.01 (Organization, Standing and Power), Section 3.02 (Company Subsidiaries; Equity Interests), Section 3.03 <omitted> (b), (c) (first sentence only) and (f) (Capital Structure), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.13 (Brokers and Other Advisors) and in Section 3.20 (Vote Required) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date, except to the extent that such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all but de minimis respects on and as of such earlier date), (Page 72)
SECTION 3.04. Authority; Execution and Delivery; Enforceability. <omitted> (b) The Board of Directors of the Company (the “Company Board”), at a meeting duly called and held at which all directors of the Company were present, duly and unanimously adopted resolutions (i) approving and declaring advisable this Agreement and the other Transaction Agreements, the Merger and the other Transactions and approving the execution, delivery and performance of this Agreement and the other Transaction Agreements <omitted> and (v) electing that the Merger not be subject to any “moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-takeover laws and regulations (collectively, “Takeover Laws”) of any jurisdiction that may purport to be applicable to this Agreement, which resolutions have not been rescinded, modified or withdrawn in any way.
SECTION 7.02. Conditions to Obligations of Parent and Sub. <omitted> (i) The representations and warranties of the Company in Section 3.01 (Organization, Standing and Power), Section 3.02 (Company Subsidiaries; Equity Interests), Section 3.03 <omitted> (b), (c) (first sentence only) and (f) (Capital Structure), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.13 (Brokers and Other Advisors) and in Section 3.20 (Vote Required) shall be true and correct in all but de minimis respects (Page 72) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Takeover Statutes, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_79 | 7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law:
(a) Representations and Warranties of the Company. <omitted>
(ii) all other representations and warranties of the Company set forth in Article IV shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been so true and correct only as of such date or period of time), except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained in such representations and warranties as to “materiality”, “in all material respects” or “Company Material Adverse Effect”) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 68)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted>
(ii) all other representations and warranties of the Company set forth in Article IV shall have been true and correct <omitted> , except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct <omitted> would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 68)
4.2 Capital Structure. <omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law:
(a) Representations and Warranties of the Company. (i) The representations and warranties of the Company set forth in the first sentence of Section 4.1, Section 4.2, Section 4.3(a), Section 4.6(a) and Section 4.22 shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except, with respect to Section 4.2, for any de minimis inaccuracies) (except that representations and warranties that speak as of a specified date or period of time shall have been so true and correct only as of such date or period of time); (Page 68)
4.2 Capital Structure. <omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted>
(i) The representations and warranties of the Company set forth in the first sentence of <omitted> Section 4.2 <omitted> shall have been true and correct <omitted> (except, with respect to Section 4.2, for any de minimis inaccuracies) (Page 68)
4.1 Organization, Standing and Power. <omitted>
4.2 Capital Structure. <omitted>
4.3 Authority; No Violations; Consents and Approvals.
(a) The Company has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due and valid execution of this Agreement by Parent and Merger Sub, constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other Laws of general applicability, now or hereafter in effect, relating to or affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a Proceeding in equity or at law (collectively, “Creditors’ Rights”). The Company Board, at a meeting duly called and held, has by unanimous vote <omitted> (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger <omitted> . <omitted>
4.6 Absence of Certain Changes or Events. <omitted>
4.22 Brokers. <omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law:
(a) Representations and Warranties of the Company. (i) The representations and warranties of the Company set forth in the first sentence of Section 4.1, Section 4.2, Section 4.3(a), Section 4.6(a) and Section 4.22 shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except, with respect to Section 4.2, for any de minimis inaccuracies) (except that representations and warranties that speak as of a specified date or period of time shall have been so true and correct only as of such date or period of time); (Page 68)
4.1 Organization, Standing and Power. <omitted>
4.2 Capital Structure. <omitted>
4.3 Authority; No Violations; Consents and Approvals.
(a) The Company has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due and valid execution of this Agreement by Parent and Merger Sub, constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other Laws of general applicability, now or hereafter in effect, relating to or affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a Proceeding in equity or at law (collectively, “Creditors’ Rights”). The Company Board, at a meeting duly called and held, has by unanimous vote <omitted> (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger <omitted> . <omitted>
4.6 Absence of Certain Changes or Events. <omitted>
4.22 Brokers. <omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted>
(i) The representations and warranties of the Company set forth in the first sentence of Section 4.1, Section 4.2, Section 4.3(a), Section 4.6(a) and Section 4.22 shall have been true and correct <omitted> (except, with respect to Section 4.2, for any de minimis inaccuracies) (Page 68) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_150 | 5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. <omitted> (iii) the representations and warranties of the Company set forth in this Agreement (other than those representations and warranties referred to in the foregoing clauses (i) and (ii)) shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and accurate as of such particular date or period of time), except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in, a Company Material Adverse Effect. (Page 83)
5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (iii) the representations and warranties of the Company set forth in this Agreement <omitted> shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time <omitted> except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in, a Company Material Adverse Effect. (Page 83)
2.3 Capitalization. <omitted> 5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time) (Page 83)
2.3 Capitalization. <omitted> 5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies (Page 83)
2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
2.3 Capitalization. <omitted> ( d ) Except as set forth in Section 2.3(c), there are no: <omitted> (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company or any Company Subsidiary is or may become obligated to sell or otherwise issue any shares of its capital stock or other equity interest or any other securities. <omitted>
2.4 Authority; Binding Nature of Agreement. <omitted> This Agreement has been duly executed and delivered on behalf of the Company and, assuming the due authorization, execution and delivery of this Agreement on behalf of Parent and Acquisition Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted>
2.5 Vote Required. <omitted>
2.6 Non-Contravention; Consents. <omitted>
2.21 Takeover Statutes. <omitted>
2.24 Brokers. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations . The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (ii) the representations and warranties of the Company contained in Section 2.1(a), Section 2.3(f), Section 2.4, Section 2.5, Section 2.6(a)(i), Section 2.21 and Section 2.24 shall have been true and accurate in all material respects at and as of the date hereof and shall be true and accurate in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate in all material respects as of such particular date or period of time); provided, however, that, in the case of this clause (ii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; (Page 83)
2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
2.3 Capitalization. <omitted> ( d ) Except as set forth in Section 2.3(c), there are no: <omitted> (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company or any Company Subsidiary is or may become obligated to sell or otherwise issue any shares of its capital stock or other equity interest or any other securities. <omitted>
2.4 Authority; Binding Nature of Agreement. <omitted> This Agreement has been duly executed and delivered on behalf of the Company and, assuming the due authorization, execution and delivery of this Agreement on behalf of Parent and Acquisition Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted>
2.5 Vote Required. <omitted>
2.6 Non-Contravention; Consents. <omitted>
2.21 Takeover Statutes. <omitted>
2.24 Brokers. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations . <omitted> (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies <omitted> (ii) the representations and warranties of the Company contained in Section 2.1(a), Section 2.3(f), Section 2.4, Section 2.5, Section 2.6(a)(i), Section 2.21 and Section 2.24 shall have been true and accurate in all material respects (Page 83) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Takeover Statutes, Rights Agreement | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_15 | 8.2. Conditions to Obligations of WSFS. The obligation of WSFS to consummate the Mergers is subject to the satisfaction at or prior to the Effective Time of the following conditions, unless waived by WSFS pursuant to Section 10.6:
(a) Representations and Warranties . <omitted>. The representations and warranties set forth in each other section in ARTICLE 4 shall, in the aggregate, be true and correct in all respects except where the failure of such representations and warranties to be true and correct has not had or would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; provided, that, for purposes of this sentence only, those representations and warranties which are qualified by references to “material” or “Material Adverse Effect” shall be deemed not to include such qualifications. (Page 63)
8.2. Conditions to Obligations of WSFS. <omitted>
(a) <omitted>
The representations and warranties set forth in each other section in ARTICLE 4 shall <omitted> be true and correct in all respects except where the failure of such representations and warranties to be true and correct has not had <omitted> a Material Adverse Effect (Page 63)
4.3. Capitalization of Bryn Mawr. <omitted>
<omitted>
8.2. Conditions to Obligations of WSFS. The obligation of WSFS to consummate the Mergers is subject to the satisfaction at or prior to the Effective Time of the following conditions, unless waived by WSFS pursuant to Section 10.6:
(a) Representations and Warranties . <omitted> The representations and warranties set forth in Sections 4.3(a), 4.3(c), 4.4(a) (second and third sentences only), 4.9(a), and 4.30 shall be true and correct (except for inaccuracies which are de minimis in amount). (Page 63)
4.3. Capitalization of Bryn Mawr.
<omitted>
8.2. Conditions to Obligations of WSFS. <omitted>
(a) Representations and Warranties . <omitted> . The representations and warranties set forth in Sections 4.3(a) <omitted> shall be true and correct (except for inaccuracies which are de minimis in amount). <omitted> . (Page 63)
4.1. Organization, Standing, and Power. <omitted>
4.2. Authority of Bryn Mawr; No Breach By Agreement.
(a) Bryn Mawr has the corporate power and authority necessary to execute, deliver, and, other than with respect to the Merger, perform
this Agreement, and with respect to the Merger, upon the approval of this Agreement and the Merger by the affirmative vote of at least a majority of the outstanding shares of Bryn Mawr entitled to vote on this Agreement and the Merger as contemplated by Section 7.1 (the “
Bryn Mawr Shareholder Approval”), to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated herein, including the Mergers, have been duly and validly authorized and approved by all necessary corporate action in respect thereof on the part of Bryn Mawr and Bryn Mawr Bank (including, approval by, and a determination by the boards of directors of Bryn Mawr and Bryn Mawr Bank that this Agreement and the Subsidiary Plan of Merger are advisable and in the best interests of Bryn Mawr’s shareholders and Bryn Mawr Bank’s shareholder and directing the submission of this Agreement to a vote at a meeting of shareholders), subject to receipt of the Bryn Mawr Shareholder Approval. Subject to the Bryn Mawr Shareholder Approval, and assuming the due
authorization, execution and delivery by WSFS, this
Agreement represents a legal, valid, and binding obligation of Bryn Mawr, enforceable against Bryn Mawr in accordance with its terms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, conservatorship, moratorium, or similar Laws affecting the enforcement of creditors’ rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought (the “Bankruptcy and Equity Exceptions”)).
<omitted>
(b) No Conflicts. Subject to the receipt of the Bryn Mawr Shareholder Approval, neither the execution and delivery of this Agreement by Bryn Mawr, nor the consummation by Bryn Mawr of the transactions contemplated hereby, nor compliance by Bryn Mawr with any of the provisions hereof, will <omitted> (y) violate, conflict with, constitute or result in a Default under or the loss of any benefit under, result in the termination of or aright of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective Assets of any Bryn Mawr Entity under any of the terms, conditions or provisions of any Contract or Permit of any Bryn Mawr Entity or under which any of their respective Assets may be bound, except (in the case of clause (y) above) where such violations, conflicts, or Defaults have not had or would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Bryn Mawr. <omitted>
4.3. Capitalization of Bryn Mawr. <omitted> (b) Other Rights or Obligations.
4.4. Bryn Mawr Subsidiaries. (a) Bryn Mawr has no direct or indirect Subsidiaries nor owns any equity interests in any other Person, other than Bryn Mawr Bank and the entities set forth in Section 4.4(a)(i) of Bryn Mawr’s Disclosure Memorandum and indirect ownership through Bryn Mawr Bank of the entities set forth in Section 4.4(a)(ii)of Bryn Mawr’s Disclosure Memorandum. <omitted>
4.9. Absence of Certain Changes or Events. (a) Since December 31, 2020, there has not been a Material Adverse Effect on Bryn Mawr. <omitted>
4.30. Brokers and Finders. <omitted>
8.2. Conditions to Obligations of WSFS. The obligation of WSFS to consummate the Mergers is subject to the satisfaction at or prior to the Effective Time of the following conditions, unless waived by WSFS pursuant to Section 10.6:
(a) Representations and Warranties . <omitted> The representations and warranties set forth in Sections <omitted> 4.9(a), and 4.30 shall be true and correct (except for inaccuracies which are de minimis in amount). The representations and warranties set forth in Sections 4.1, 4.2, 4.3(b), 4.4(a) (other than the second and third sentences), 4.4(b) and 4.4(c) shall be true and correct in all material respects. The representations and warranties set forth in each other section in ARTICLE 4 shall, in the aggregate, be true and correct in all respects except where the failure of such representations and warranties to be true and correct has not had or would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; provided, that, for purposes of this sentence only, those representations and warranties which are qualified by references to “material” or “Material Adverse Effect” shall be deemed not to include such qualifications. (Page 63)
4.1. Organization, Standing, and Power.
4.2. Authority of Bryn Mawr; No Breach By Agreement.
(a) Bryn Mawr has the corporate power and authority necessary to execute, deliver, and, other than with respect to the Merger, perform
this Agreement, and with respect to the Merger, <omitted> to perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated herein, including the Mergers, have been duly and validly authorized and approved by all necessary corporate action in respect thereof on the part of Bryn Mawr and Bryn Mawr Bank
<omitted>
this Agreement represents a legal, valid, and binding obligation of Bryn Mawr, enforceable against Bryn Mawr in accordance with its terms
<omitted>
(b) No Conflicts. Subject to the receipt of the Bryn Mawr Shareholder Approval, neither the execution and delivery of this Agreement by Bryn Mawr, nor the consummation by Bryn Mawr of the transactions contemplated hereby, nor compliance by Bryn Mawr with any of the provisions hereof, will <omitted> (y) violate, conflict with, constitute or result in a Default under or the loss of any benefit under, result in the termination of or aright of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective Assets of any Bryn Mawr Entity under any of the terms, conditions or provisions of any Contract or Permit of any Bryn Mawr Entity or under which any of their respective Assets may be bound, except (in the case of clause (y) above) where such violations, conflicts, or Defaults have not had or would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Bryn Mawr.
4.3. Capitalization of Bryn Mawr. <omitted> (b)Other Rights or Obligations.
4.4. Bryn Mawr Subsidiaries.
(a)Bryn Mawr has no direct or indirect Subsidiaries nor owns any equity interests in any other Person, other than Bryn Mawr Bank and the entities set forth in Section 4.4(a)(i) of Bryn Mawr’s Disclosure Memorandum and indirect ownership through Bryn Mawr Bank of the entities set forth in Section 4.4(a)(ii)of Bryn Mawr’s Disclosure Memorandum. <omitted>
4.9. Absence of Certain Changes or Events. (a)Since December 31, 2020, there has not been a Material Adverse Effect on Bryn Mawr. <omitted>
4.30. Brokers and Finders. <omitted>
8.2. Conditions to Obligations of WSFS. <omitted> (a) Representations and Warranties . <omitted> The representations and warranties set forth in Sections <omitted> 4.9(a), and 4.30 shall be true and correct (except for inaccuracies which are de minimis in amount). The representations and warranties set forth in Sections 4.1, 4.2, 4.3(b), 4.4(a) (other than the second and third sentences), 4.4(b) and 4.4(c) shall be true and correct in all material respects. (Page 63) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, No-Conflict | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_73 | Section 6. Conditions Precedent to Obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub The obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub to effect the Mergers and otherwise consummate the Contemplated Transactions are subject to the satisfaction (or waiver by Marvell, on behalf of itself, HoldCo, Bermuda Merger Sub and Delaware Merger Sub), at or prior to the Closing, of each of the following conditions:6.1 Accuracy of Representations. (a) Each of the representations and warranties of the Company contained in this Agreement, other than the Specified Representations, shall have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (in each case, other than any such representation or warranty made as of a specific earlier date, which shall have been accurate in all respects as of such earlier date), except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have or result in, a Material Adverse Effect on the Company; provided, however, that, for purposes of determining the accuracy of such representations and warranties as of the foregoing dates: (i) all “Material Adverse Effect” and other materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded; and (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded. (Page 90)
Section 6. Conditions Precedent to Obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub <omitted> (a) Each of the representations and warranties of the Company contained in this Agreement, other than the Specified Representations, shall have been accurate in all respects <omitted> , except that any inaccuracies <omitted> will be disregarded if the circumstances giving rise to all such inaccuracies <omitted> do not constitute, and would not reasonably be expected to have or result in, a Material Adverse Effect on the Company; provided, however, that, <omitted> : (i) all “Material Adverse Effect” and other materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded; (Page 90)
Section 6. Conditions Precedent to Obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub The obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub to effect the Mergers and otherwise consummate the Contemplated Transactions are subject to the satisfaction (or waiver by Marvell, on behalf of itself, HoldCo, Bermuda Merger Sub and Delaware Merger Sub), at or prior to the Closing, of each of the following conditions:6.1 Accuracy of Representations. <omitted> (d) Each of the representations and warranties of the Company contained in Section 2.3(a), the first and last sentences of Section 2.3(b) and Section 2.3(d) shall have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (in each case, other than any such representation or warranty made as of a specific earlier date, which shall have been accurate in all respects as of such earlier date), except that any inaccuracies in such representations and warranties that are, in the aggregate, de minimis in nature and amount will be disregarded; provided, however, that, for purposes of determining the accuracy of such representations and warranties as of the foregoing dates, any update of or modification to the Company Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded. (Page 91)
Section 6. Conditions Precedent to Obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub <omitted> (d) Each of the representations and warranties of the Company contained in Section 2.3(a), the first and last sentences of Section 2.3(b) and Section 2.3(d) shall have been accurate in all respects <omitted> , except <omitted> any inaccuracies <omitted> that are, in the aggregate, de minimis in nature and amount (Page 91)
2.20 Authority; Binding Nature of Agreement. <omitted> The Company’s board of directors (at a meeting duly called and held) has: <omitted> unanimously authorized and approved the execution, delivery and performance of this Agreement by the Company and unanimously approved the Delaware Merger; <omitted> This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. <omitted>
2.21 Takeover Statutes; No Rights Plan. <omitted>
2.23 Vote Required.
2.25 Fairness Opinion.
2.26. Advisors' Fees.
2.5 Absence of Changes. Between December 31, 2019 and the date of this Agreement, there has not been any Material Adverse Effect on the Company, and no event has occurred or circumstance has arisen that, in combination with any other events or circumstances, would reasonably be expected to have or result in a Material Adverse Effect on the Company.
Section 6. Conditions Precedent to Obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub The obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub to effect the Mergers and otherwise consummate the Contemplated Transactions are subject to the satisfaction (or waiver by Marvell, on behalf of itself, HoldCo, Bermuda Merger Sub and Delaware Merger Sub), at or prior to the Closing, of each of the following conditions:6.1 Accuracy of Representations. <omitted> (b) Each of the representations and warranties of the Company contained in Sections 2.20, 2.21, 2.23, 2.25 and 2.26 shall have been accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects as of the Closing Date as if made on and as of the Closing Date (in each case, other than any such representation or warranty made as of a specific earlier date, which shall have been accurate in all material respects as of such earlier date); provided, however, that, for purposes of determining the accuracy of such representations and warranties as of the foregoing dates: (i) all “Material Adverse Effect” and other materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded; and (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded. (c) The representation and warranty contained in clause “(a)” of Section 2.5 shall have been accurate in all respects as of the date of this Agreement. (Page 91)
2.20 Authority; Binding Nature of Agreement. <omitted> The Company’s board of directors (at a meeting duly called and held) has: <omitted> unanimously authorized and approved the execution, delivery and performance of this Agreement by the Company and unanimously approved the Delaware Merger; <omitted> This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. <omitted>
2.21 Takeover Statutes; No Rights Plan. <omitted>
2.23 Vote Required.
2.25 Fairness Opinion.
2.26. Advisors' Fees.
2.5 Absence of Changes. Between December 31, 2019 and the date of this Agreement, there has not been any Material Adverse Effect on the Company, and no event has occurred or circumstance has arisen that, in combination with any other events or circumstances, would reasonably be expected to have or result in a Material Adverse Effect on the Company.
Section 6. Conditions Precedent to Obligations of Marvell, HoldCo, Bermuda Merger Sub and Delaware Merger Sub <omitted> (b) Each of the representations and warranties of the Company contained in Sections 2.20, 2.21, 2.23, 2.25 and 2.26 shall have been accurate in all material respects <omitted> . (c) The representation and warranty contained in clause “(a)” of Section 2.5 shall have been accurate in all respects (Page 91) | Authority, Approval, Enforceability, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_27 | Section 6.3 Conditions to Obligation of Parent to Effect the First Merger. The obligation of Parent to effect the First Merger is further subject to the fulfillment (or the waiver by Parent) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted>
(iii) the other representations and warranties of the Company set forth in Article III shall be true and correct 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 an earlier date, in which case as of such date), except with respect to this clause (iii) where the failure of such representations and warranties to be so true and correct (without regard to any qualifications or exceptions as to “materiality,” “Company Material Adverse Effect” and similar qualifiers contained in such representations and warranties) has not had or would not have, individually or in the aggregate, a Company Material Adverse Effect; (Page 92)
Section 6.3 Conditions to Obligation of Parent to Effect the First Merger. <omitted>
(iii) the other representations and warranties of the Company set forth in Article III shall be true and correct <omitted> except with respect to this clause (iii) where the failure of such representations and warranties to be so true and correct <omitted> has not had or would not have, individually or in the aggregate, a Company Material Adverse Effect; (Page 92)
Section 3.2 Capital Stock. <omitted>
Section 6.3 Conditions to Obligation of Parent to Effect the First Merger. The obligation of Parent to effect the First Merger is further subject to the fulfillment (or the waiver by Parent) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties.
(i) The representations and warranties of the Company set forth in Section 3.2(a) shall be true and correct in all respects (except for only de minimis inaccuracies) 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 an earlier date, in which case as of such date), (Page 92)
Section 3.2 Capital Stock. <omitted>
Section 6.3 Conditions to Obligation of Parent to Effect the First Merger.
<omitted>
(i) The representations and warranties of the Company set forth in Section 3.2(a) shall be true and correct in all respects (except for only de minimis inaccuracies) (Page 92)
Section 3.1 Qualification, Organization, Subsidiaries. <omitted>
Section 3.2 Capital Stock. <omitted>
Section 3.3 Corporate Authority Relative to this Agreement; No Violation. <omitted>
(iii) approved the execution, delivery and performance of this Agreement and the Merger,
<omitted>
This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the legal, valid and binding agreement of the counterparties thereto, constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforcement may be subject to the limitation of such enforcement by (A) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other Laws affecting or relating to creditors’ rights generally or (B) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law (the “Remedies Exceptions”).
<omitted>
Section 3.23 Finders or Brokers. <omitted>
Section 3.25 Takeover Laws. <omitted>
Section 6.3 Conditions to Obligation of Parent to Effect the First Merger. The obligation of Parent to effect the First Merger is further subject to the fulfillment (or the waiver by Parent) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted>
(ii) the representations and warranties of the Company set forth in Section 3.1 (other than the second sentence of Section 3.1(b)), Section 3.2 (other than Section 3.2(a)), Section 3.3(a), Section 3.23 and Section 3.25 shall be true and correct in all material respects, 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 an earlier date, in which case as of such date), (Page 92)
Section 3.1 Qualification, Organization, Subsidiaries. <omitted>
Section 3.2 Capital Stock. <omitted>
Section 3.3 Corporate Authority Relative to this Agreement; No Violation. <omitted>
(iii) approved the execution, delivery and performance of this Agreement and the Merger,
<omitted>
This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the legal, valid and binding agreement of the counterparties thereto, constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms
<omitted>
Section 3.23 Finders or Brokers. <omitted>
Section 3.25 Takeover Laws. <omitted>
Section 6.3 Conditions to Obligation of Parent to Effect the First Merger. <omitted>
(ii) the representations and warranties of the Company set forth in Section 3.1 (other than the second sentence of Section 3.1(b)), Section 3.2 (other than Section 3.2(a)), Section 3.3(a), Section 3.23 and Section 3.25 shall be true and correct in all material respects (Page 92) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Takeover Statutes | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_147 | Section 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of each of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions:(a) Representations and Warranties. The representations and warranties of the Company set forth in: <omitted> ( i i i ) Article IV of this Agreement (other than the Fundamental Representations and Section 4.4 (Capitalization)), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, shall be true and correct as of the date of this Agreement and as of immediately prior to the Effective Time with the same force and effect as if made on and as of such date or time, except to the extent expressly made as of a specific date or time, in which case such representation must be true and correct as of such date or time, in each case except for such failures to be true and correct, individually and in the aggregate, as have not had, and would not reasonably be expected to have, a Company Material Adverse Effect. (Page 49)
Section 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> The representations and warranties of the Company set forth in: <omitted> Article IV of this Agreement <omitted> shall be true and correct <omitted> in each case except for such failures to be true and correct, individually and in the aggregate, as have not had, and would not reasonably be expected to have, a Company Material Adverse Effect. (Page 49)
Section 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of each of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions:(a) Representations and Warranties. The representations and warranties of the Company set forth in: <omitted> ( i i ) Section 4.4 (Capitalization) shall be true and correct in all respects (except for such inaccuracies that are de minimis in the aggregate) as of the date of this Agreement and as of immediately prior to the Effective Time with the same force and effect as if made on and as of such date or time, except to the extent expressly made as of a specific date or time, in which case such representation must be true and correct in all respects as of such date or time; (Page 49)
Section 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> The representations and warranties of the Company set forth in: <omitted> Section 4.4 (Capitalization) shall be true and correct in all respects (except for such inaccuracies that are de minimis in the aggregate) (Page 49)
Section 4.2 Authority. (a) <omitted> This Agreement has been validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of Parent and Merger Sub and assuming the accuracy of the representations and warranties set forth in Section 5.5, constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted> At a meeting duly called and held at which all of the directors of the Company were present, the Company Board duly and unanimously adopted resolutions (i) approving and declaring the advisability of this Agreement, (ii) approving the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the Merger <omitted>
Section 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> The representations and warranties of the Company set forth in: ( i ) Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2 (Authority) , Section 4.3(b) (Required Filings and Consents), Section 4.30 (Opinion of Financial Advisor) and Section 4.31 (Brokers and Fees) (the “Fundamental Representations”) that are qualified by materiality or “Company Material Adverse Effect” shall be true and correct in all respects as of the date of this Agreement and as of immediately prior to the Effective Time with the same force and effect as if made on and as of such date or time, except to the extent expressly made as of a specific date or time, in which case such representation must be true and correct in all respects as of such date or time, and all of the Fundamental Representations that are not qualified by materiality or “Company Material Adverse Effect” shall be true and correct in all material respects as of the date of this Agreement and as of immediately prior to the Effective Time with the same force and effect as if made on and as of such date or time, except to the extent expressly made as of a specific date or time, in which case such representation must be true and correct in all respects as of such date or time;
84
( i i ) Section 4.4 (Capitalization) shall be true and correct in all respects (except for such inaccuracies that are de minimis in the aggregate) <omitted> except to the extent expressly made as of a specific date or time, in which case such representation must be true and correct in all respects as of such date or time; (Pages 48-49)
Section 4.2 Authority. (a) <omitted> This Agreement has been validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of Parent and Merger Sub and assuming the accuracy of the representations and warranties set forth in Section 5.5, constitutes a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted> At a meeting duly called and held at which all of the directors of the Company were present, the Company Board duly and unanimously adopted resolutions (i) approving and declaring the advisability of this Agreement, (ii) approving the execution, delivery and performance of this Agreement and the consummation of the Transactions, including the Merger <omitted>
Section 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of each of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company set forth in: ( i ) Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2 (Authority) , Section 4.3(b) (Required Filings and Consents), Section 4.30 (Opinion of Financial Advisor) and Section 4.31 (Brokers and Fees) (the “Fundamental Representations”) that are qualified by materiality or “Company Material Adverse Effect” shall be true and correct in all respects as of the date of this Agreement and as of immediately prior to the Effective Time with the same force and effect as if made on and as of such date or time, except to the extent expressly made as of a specific date or time, in which case such representation must be true and correct in all respects as of such date or time, and all of the Fundamental Representations that are not qualified by materiality or “Company Material Adverse Effect” shall be true and correct in all material respects as of the date of this Agreement and as of immediately prior to the Effective Time with the same force and effect as if made on and as of such date or time, except to the extent expressly made as of a specific date or time, in which case such representation must be true and correct in all respects as of such date or time;
84
( i i ) Section 4.4 (Capitalization) shall be true and correct in all respects (except for such inaccuracies that are de minimis in the aggregate) as of the date of this Agreement and as of immediately prior to the Effective Time with the same force and effect as if made on and as of such date or time, except to the extent expressly made as of a specific date or time, in which case such representation must be true and correct in all respects as of such date or time; (Pages 48-49) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_3 | SECTION 4.03 Authority Relative to This Agreement. <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted>
SECTION 8.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or written waiver by Parent (where permissible), prior to the Effective Time, of the following additional conditions:
( a ) Representations and Warranties . (i) The representations and warranties of the Company set forth in Section 4.02(a) and Section 4.02(b) (Capitalization) (other than for inaccuracies that are de minimis in the aggregate relative to the total fully diluted equity capitalization of the Company) shall be true and correct in all respects as of the date of this Agreement (provided that, to the extent that any failure of such representations and warranties to be so true as of the date of this Agreement is cured prior to the Closing Date, such failure shall not be considered a failure of the condition in this Section 8.02(a)(i)) and as of the Closing Date, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), (ii) the representations and warranties of the Company set forth in Section 4.02(c) (Capitalization) , Section 4.03 (Authority Relative to This Agreement) and Section 4.23 (Brokers) shall be true and correct in all material respects as of the date of this Agreement (provided that, to the extent that any failure of such representations and warranties to be so true as of the date of this Agreement is cured prior to the Closing Date, such failure shall not be considered a failure of the condition in this Section 8.02(a)(ii)) and as of the Closing Date, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date) and (iii) each of the other representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects as of the date of this Agreement (provided that, to the extent that any failure of such representations and warranties to be so true as of the date of this Agreement is cured prior to the Closing Date, such failure shall not be considered a failure of the condition in this Section 8.02(a)(iii)) and as of the Closing Date, as if made at such time, except to the extent such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), other than, in the case of clause (iii), for such failures to be true and correct that, individually or in the aggregate, would not have a Material Adverse Effect (it being understood that for this purpose all references to the term “Material Adverse Effect” and other qualifications based on the word “material,” set forth in any such representations and warranties shall be disregarded). (Page 33) | Capitalization-Other, Authority, Enforceability, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_19 | Section 7.2 Conditions to Obligations of Parent, US Holdco and Crystal Merger Sub. The obligations of Parent, US Holdco and Crystal Merger Sub to effect the Mergers are also subject to the satisfaction or waiver (in writing) by Parent on or prior to the Closing Date of each of the following additional conditions: (a) Representations and Warranties. Each of the representations and warranties of the Company set forth in (i) Article III (other than Section 3.1(a) (first sentence), Section 3.1(b) (clause (i) of first sentence), Section 3.2(a) (other than the last sentence thereof), Section 3.2(b), Section 3.2(c), Section 3.3(a), Section 3.10(a), Section 3.18, Section 3.19, Section 3.22 and Section 3.24) shall be true and correct (without regard to “materiality” and “Company Material Adverse Effect” qualifiers contained in such representations and warranties) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that any such representation and warranty expressly speaks as of another date, in which case such representation and warranty shall only be required to be so true and correct as of such other date), other than for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (Page 35)
Section 7.2 Conditions to Obligations of Parent, US Holdco and Crystal Merger Sub <omitted> Each of the representations and warranties of the Company set forth in (i) Article III <omitted> shall be true and correct <omitted> other than for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect (Page 35)
Section 3.2 Capitalization <omitted> Section 7.2 Conditions to Obligations of Parent, US Holdco and Crystal Merger Sub. The obligations of Parent, US Holdco and Crystal Merger Sub to effect the Mergers are also subject to the satisfaction or waiver (in writing) by Parent on or prior to the Closing Date of each of the following additional conditions: (a) Representations and Warranties. Each of the representations and warranties of the Company set forth in <omitted> (ii) Section 3.2(a) (other than the last sentence thereof) and Section 3.2(b) shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that any such representation and warranty expressly speaks as of another date, in which case such representation and warranty shall only be required to be so true and correct as of such other date), except for de minimis inaccuracies (Page 35)
Section 3.2 Capitalization <omitted> Section 7.2 Conditions to Obligations of Parent, US Holdco and Crystal Merger Sub <omitted> Each of the representations and warranties of the Company set forth in (ii) Section 3.2(a) <omitted> shall be true and correct <omitted> except for de minimis inaccuracies (Page 35)
Section 3.1 Qualification, Organization, Subsidiaries, etc. <omitted> Section 3.2 Capitalization. <omitted> Section 3.3 Corporate Authority Relative to this Agreement; No Violation. (a) <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent, US Holdco and Crystal Merger Sub, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, <omitted> Section 3.10 Absence of Certain Changes or Events. (a) From July 31, 2020 through the date of this Agreement, there has not occurred any Effect that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. <omitted> Section 3.18 Opinion of Financial Advisor. <omitted> Section 3.19 Required Vote. <omitted> Section 3.22 Finders and Brokers. <omitted> Section 3.24 Takeover Statutes. Other than Section 203 of DGCL (from which the Company has taken all action necessary to exempt this Agreement and the Transactions, including the Mergers), no Takeover Statutes are applicable to the Transactions, including the Mergers. As of the date of this Agreement, there is no stockholder rights plan, “poison pill” anti-takeover plan or similar device in effect to which the Company or any Company Subsidiaries is, or the Canyon Newco Entities will be, subject, party or otherwise bound. <omitted>
Section 7.2 Conditions to Obligations of Parent, US Holdco and Crystal Merger Sub. The obligations of Parent, US Holdco and Crystal Merger Sub to effect the Mergers are also subject to the satisfaction or waiver (in writing) by Parent on or prior to the Closing Date of each of the following additional conditions: (a) Representations and Warranties. Each of the representations and warranties of the Company set forth in <omitted> (iii) Section 3.1(a) (first sentence), Section 3.1(b) (clause (i) of first sentence), Section 3.2(c), Section 3.3(a), Section 3.18, Section 3.22 and Section 3.24 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent that any such representation and warranty expressly speaks as of another date, in which case such representation and warranty shall only be required to be so true and correct as of such other date), and (iv) Section 3.10(a) and Section 3.19 shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of such date; and Parent shall have received a certificate signed on behalf of the Company by a duly authorized executive officer of the Company to the foregoing effect; (Page 35)
Section 3.1 Qualification, Organization, Subsidiaries, etc. <omitted> Section 3.2 Capitalization. <omitted> Section 3.3 Corporate Authority Relative to this Agreement; No Violation. (a) <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent, US Holdco and Crystal Merger Sub, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted> Section 3.10 Absence of Certain Changes or Events. (a) From July 31, 2020 through the date of this Agreement, there has not occurred any <omitted> Company Material Adverse Effect. <omitted> Section 3.18 Opinion of Financial Advisor. <omitted> Section 3.19 Required Vote. <omitted> Section 3.22 Finders and Brokers. <omitted> Section 3.24 Takeover Statutes. Other than Section 203 of DGCL (from which the Company has taken all action necessary to exempt this Agreement and the Transactions, including the Mergers), no Takeover Statutes are applicable to the Transactions, including the Mergers. As of the date of this Agreement, there is no stockholder rights plan, “poison pill” anti-takeover plan or similar device in effect to which the Company or any Company Subsidiaries is, or the Canyon Newco Entities will be, subject, party or otherwise bound. <omitted> <omitted>
Section 7.2 Conditions to Obligations of Parent, US Holdco and Crystal Merger Sub. <omitted> (iii) Section 3.1(a) (first sentence), Section 3.1(b) (clause (i) of first sentence), Section 3.2(c), Section 3.3(a), Section 3.18, Section 3.22 and Section 3.24 shall be true and correct in all material respects <omitted> and (iv) Section 3.10(a) and Section 3.19 shall be true and correct (Page 35) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_65 | Section 5.02 Corporate Authorization; Stockholder Support. <omitted> The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by each of Parent and Merger Sub, this Agreement constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> (b) At a meeting duly called and held, the Board of Directors has unanimously <omitted> (ii) approved, adopted and declared advisable this Agreement and the Transactions, including the Offer and the Merger <omitted>
Section 5.10 Absence of Certain Changes. Since the Company Balance Sheet Date through the date hereof, <omitted> (b) there has not been any Company Material Adverse Effect <omitted>
Notwithstanding any other provision of the Offer, but subject to the terms of this Agreement, Merger Sub shall not be required pursuant to Section 2.01(e) or otherwise to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the 1934 Act, pay for, and may delay the acceptance for payment of, or (subject to any such rules and regulations) the payment for, any tendered Shares unless all of the following conditions have been satisfied: <omitted> (C) (i) the representations and warranties of the Company set forth in Section 5.01 (Corporate Existence and Power), Section 5.02 (Corporate Authorization), the first sentence of Section 5.05(b) (Capitalization), Section 5.23 (Finders’ Fees), Section 5.24 (Opinion of Financial Advisor) and Section 5.25 (Antitakeover Statutes) shall be true and correct in all material respects at and as of the Acceptance Time as if made on and as of the Acceptance Time (except to the extent that any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) the representations and warranties of the Company set forth in the first, second and fourth sentences of Section 5.05(a) of this Agreement shall be true and correct in all respects (except for de minimis inaccuracies) at and as of the Acceptance Time as if made on and as of the Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representation and warranty of the Company set forth in Section 5.10(b) shall be true and correct in all respects; and (iv) the representations and warranties of the Company set forth in this Agreement (other than those referred to in clauses (i) through (iii) above) shall be true and correct (disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) at and as of the Acceptance Time as if made on and as of the Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 40) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_71 | Section 4.1 Organization, Standing and Power. <omitted>
(d) On or prior to the date hereof, the Company Board has unanimously <omitted> (iv) approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained in this Agreement and the consummation of the Offer, the Merger and the other Transactions upon the terms and subject to the conditions contained in this Agreement; and
Section 4.19 Takeover Laws; Section 203 Approval. <omitted> The Company does not have any stockholder rights plan or “poison pill” in effect.
<omitted>
Notwithstanding any other terms or provisions of the Offer or this Agreement, the Purchaser shall not be obligated to accept for payment, or, subject to the rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, pay for any Company Shares validly tendered and not withdrawn pursuant to the Offer, and may terminate or amend the Offer in accordance with (and to the extent permitted by) the terms of this Agreement, and may postpone the acceptance of, or payment for, any Company Shares in accordance with (and to the extent permitted by) the terms of this Agreement, at any scheduled Expiration Date (as it may have been extended pursuant to Section 2.1(d) of the Agreement) if any of the conditions set forth below are not satisfied or waived in writing by Parent at one minute after 11:59 p.m., Eastern time, on the Expiration Date (the “Expiration Time”):
<omitted>
(3) the representations and warranties of the Company (i) set forth in Section 4.2(a) and (c) (Capitalization) of the Agreement shall be true and correct in all respects (except for de minimis inaccuracies) at and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (ii) set forth in Section 4.1(a) and (d) (Organization, Standing and Power), the first two sentences of Section 4.2(b) (Capitalization), the second sentence of Section 4.2(d) (Capitalization), Section 4.3 (Authorization; Execution and Delivery; Enforceability), Section 4.19 (Takeover Laws; Section 203 Approval), Section 4.20 (Brokers and Finders) and Section 4.22 (Opinion of the Company Financial Advisor) of the Agreement shall be true and correct in all material respects at and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (iii) set forth in the Agreement, other than those Sections specifically identified in clauses (i) and (ii) of this clause (3), shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) at and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iii), where the failure to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 45) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_40 | Section 3.1 Corporate Existence and Power. <omitted>
Section 3.2 Corporate Authorization. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, receivership or other similar Laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law) (collectively, the “Enforceability Exceptions”). (b) The Company Board, at a duly held meeting, has unanimously (i) determined that the terms of this Agreement and the transactions contemplated hereby, including the Merger, are fair to, and in the best interests of, the Company and its stockholders, (ii) determined that it is in the best interests of the Company and its stockholders and declared it advisable to enter into this Agreement, (iii) approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the transactions contemplated by this Agreement, including the Merger, upon the terms and subject to the conditions contained herein, (iv) resolved to make the Company Board Recommendation and (v) directed that this Agreement be submitted to the Company’s stockholders for their adoption. <omitted>
Section 3.5 Capitalization. <omitted>
Section 3.10 Absence of Certain Changes. Since the date of the Company Balance Sheet through the date of this Agreement, (a) there has not been any event, change, development or occurrence that has had a Company Material Adverse Effect <omitted>
Section 8.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by Law, by Parent): (a) Representations and Warranties. The representations and warranties of the Company (i) contained in the first two sentences (other than clause (b) of the second sentence) of Section 3.1 (Corporate Existence and Power), Section 3.2 (Corporate Authorization), Section 3.5 (Capitalization) (other than clauses (a), (b) and (d)) and Section 3.21 (Finders’ Fees, etc.) shall be true and correct in all material respects (except to the extent such representations and warranties are qualified by materiality or “Company Material Adverse Effect”, in which case such representations and warranties shall be true and correct in all respects), in each case at and as of the date hereof and at and as of the Closing as if made at and as of the Closing (except representations and warranties that by their terms speak specifically as of another specified time, in which case such representations and warranties shall be so true and correct as of such time), (ii) contained in clauses (a), (b) and (d) of Section 3.5 (Capitalization) shall be true and correct in all respects, except for de minimis inaccuracies, in each case at and as of the date hereof and at and as of the Closing as if made at and as of the Closing, (iii) contained in Section 3.10(a) shall be true and correct in all respects at and as of the date hereof and at and as of the Closing as if made at and as of the Closing and (iv) contained in Article III (other than the representations and warranties described in clauses (i) through (iii) above) shall be true and correct in all respects (disregarding all materiality and “Company Material Adverse Effect” qualifiers contained therein), in each case at and as of the date hereof and at and as of the Closing as if made at and as of the Closing (except representations and warranties that by their terms speak specifically as of another specified time, in which case such representations and warranties shall be true and correct in all respects as of such time), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. 76
(b) Performance of Obligations of the Company. The Company shall have performed in all material respects its covenants and obligations under this Agreement required to be performed by it at or prior to the Closing. (c) Absence of Company Material Adverse Effect. Since the date of this Agreement, there shall not have been any Company Material Adverse Effect. (Pages 81-82) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_145 | Section 6.2 Additional Conditions to Central’s and Merger Sub’s Obligations. The respective obligations of Central and Merger Sub to consummate the Merger are subject to the satisfaction or, to the extent permitted by Law, the waiver by Central and Merger Sub on or prior to the Effective Time of each of the following conditions: <omitted> (b) The representations and warranties of East contained <omitted> (iii) in this Agreement (other than the representations and warranties of East set forth in the first sentence of Section 2.1(a), Section 2.1(c), Section 2.2, Section 2.4 and Section 2.8(b)) shall be true and correct (without giving effect to any limitation as to “materiality” or “East Material Adverse Effect” set forth in any individual such representation or warranty) as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except (in the case of this clause (iii)) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “East Material Adverse Effect” set forth in any individual such representation or warranty) would not reasonably be expected to have, individually or in the aggregate, an East Material Adverse Effect; (Page 94)
Section 6.2 Additional Conditions to Central’s and Merger Sub’s Obligations. <omitted> (b) The representations and warranties of East contained <omitted> (iii) in this Agreement (other than the representations and warranties of East set forth in the first sentence of Section 2.1(a), Section 2.1(c), Section 2.2, Section 2.4 and Section 2.8(b)) shall be true and correct <omitted> except (in the case of this clause (iii)) where the failure of such representations and warranties to be so true and correct <omitted> would not reasonably be expected to have, individually or in the aggregate, an East Material Adverse Effect; (Page 94)
Section 2.4 Capitalization. <omitted>
Section 6.2 Additional Conditions to Central’s and Merger Sub’s Obligations.
The respective obligations of Central and Merger Sub to
consummate the
Merger are subject to the satisfaction or, to the extent permitted by
Law, the waiver by Central and Merger Sub on or prior to
the Effective Time of each of the
following conditions:
<omitted>
(b) The representations and warranties of East contained (i) in the <omitted> Section 2.4 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except for de minimis inaccuracies, (Page 94)
Section 2.4 Capitalization. <omitted>
Section 6.2
Additional Conditions to Central’s and Merger Sub’s Obligations.
The respective obligations of Central and Merger Sub to
consummate the
Merger are subject to the satisfaction or, to the extent permitted by
Law, the waiver by Central and Merger Sub on or prior to
the Effective Time of each of the
following conditions:
<omitted>
(b) The representations and warranties of East contained (i) in <omitted> Section 2.4 shall be true and correct in all respects <omitted> except for de minimis inaccuracies, (Page 94)
Section 2.1 Due Organization; Subsidiaries. <omitted>
Section 2.2 Authority; Binding Nature of Agreement. <omitted> (b) The East Board has unanimously <omitted> (ii) approved and declared advisable this Agreement, the Merger and the other transactions contemplated by this Agreement <omitted> (c) This Agreement has been duly executed and delivered by East and, assuming the due execution and delivery of this Agreement by Central and Merger Sub, constitutes the legal, valid and binding obligation of East, enforceable against East in accordance with its terms <omitted>
Section 2.4 Capitalization. <omitted> (d) <omitted> All of the outstanding shares of capital stock or other ownership interests of the East Subsidiaries that are direct or indirect wholly-owned Subsidiaries of East (A) have been validly issued and are fully paid (in the case of an interest in a limited partnership or a limited liability company, to the extent required under the applicable East Organizational Documents) and nonassessable (if such entity is a corporate entity) and (B) are owned by East, by one or more of the East Subsidiaries or by East and one or more of the East Subsidiaries, in each case free and clear of all Encumbrances. <omitted>
Section 2.8 Absence of Changes. <omitted> (Page 14)
Section 2.1 Due Organization; Subsidiaries. <omitted>
Section 2.2 Authority; Binding Nature of Agreement. <omitted> (b) The East Board has unanimously <omitted> (ii) approved and declared advisable this Agreement, the Merger and the other transactions contemplated by this Agreement <omitted> (c) This Agreement has been duly executed and delivered by East and, assuming the due execution and delivery of this Agreement by Central and Merger Sub, constitutes the legal, valid and binding obligation of East, enforceable against East in accordance with its terms <omitted>
Section 2.4 Capitalization. <omitted> (d) <omitted> All of the outstanding shares of capital stock or other ownership interests of the East Subsidiaries that are direct or indirect wholly-owned Subsidiaries of East (A) have been validly issued and are fully paid (in the case of an interest in a limited partnership or a limited liability company, to the extent required under the applicable East Organizational Documents) and nonassessable (if such entity is a corporate entity) and (B) are owned by East, by one or more of the East Subsidiaries or by East and one or more of the East Subsidiaries, in each case free and clear of all Encumbrances. <omitted>
Section 2.8 Absence of Changes. <omitted>
Section 6.2
Additional Conditions to Central’s and Merger Sub’s Obligations.
The respective obligations of Central and Merger Sub to
consummate the Merger are subject to the satisfaction or, to the extent permitted by Law, the waiver by Central and Merger Sub on or prior to the Effective Time of each of the
following conditions:
<omitted>
(b) The representations and warranties of East contained (i) in the first sentence of Section 2.1(a), Section 2.1(c), Section 2.2 and Section 2.4 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), except for de minimis inaccuracies, (ii) Section 2.8(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date) (Page 94)
Section 2.1 Due Organization; Subsidiaries. <omitted>
Section 2.2 Authority; Binding Nature of Agreement. <omitted> (b) The East Board has unanimously <omitted> (ii) approved and declared advisable this Agreement, the Merger and the other transactions contemplated by this Agreement <omitted> (c) This Agreement has been duly executed and delivered by East and, assuming the due execution and delivery of this Agreement by Central and Merger Sub, constitutes the legal, valid and binding obligation of East, enforceable against East in accordance with its terms <omitted>
Section 2.4 Capitalization. <omitted> (d) <omitted> All of the outstanding shares of capital stock or other ownership interests of the East Subsidiaries that are direct or indirect wholly-owned Subsidiaries of East (A) have been validly issued and are fully paid (in the case of an interest in a limited partnership or a limited liability company, to the extent required under the applicable East Organizational Documents) and nonassessable (if such entity is a corporate entity) and (B) are owned by East, by one or more of the East Subsidiaries or by East and one or more of the East Subsidiaries, in each case free and clear of all Encumbrances. <omitted>
Section 2.8 Absence of Changes. <omitted>
Section 6.2
Additional Conditions to Central’s and Merger Sub’s Obligations. <omitted>
(b) The representations and warranties of East contained (i) in the first sentence of Section 2.1(a), Section 2.1(c), Section 2.2 and Section 2.4 shall be true and correct in all respects <omitted> except for de minimis inaccuracies, (ii) Section 2.8(b) shall be true and correct in all respects (Page 94) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_76 | Section 3.1 Qualification, Organization, Subsidiaries. <omitted> Section 3.2 Capitalization. <omitted> Section 3.3 Corporate Authority Relative to This Agreement; Consents and Approvals; No Violation. <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent and each Merger Sub, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted> (b) The Company Board at a duly called and held meeting has unanimously <omitted> (ii) approved the execution, delivery and performance of this Agreement and the consummation of the Mergers and the other transactions contemplated hereby <omitted> Section 3.26 Finders or Brokers. <omitted>
Section 6.3 Conditions to Obligations of Parent and Merger Subs to Effect the Mergers. The obligations of Parent and each Merger Sub to effect the Mergers are further subject to the satisfaction (or waiver by Parent to the extent permitted by applicable Law) of the following conditions:
(a) (i) The representations and warranties of the Company set forth in Section 3.2(a) (other than the last sentence thereof) and Section 3.12(a) shall be true and correct, at and as of the date of this Agreement and at and as of Closing, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), in each case, except for de minimis inaccuracies; (ii) the representations and warranties of the Company set forth in the first sentence of Section 3.1(a), Section 3.2(b), Section 3.3(a), Section 3.3(b) and Section 3.26 shall be true and correct in all material respects, at and as of the date of this Agreement and at and as of Closing, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); (iii) the representations and warranties of the Company set forth in Article 3 that are qualified by a “Company Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (iv) the other representations and warranties of the Company set forth in Article 3 shall be true and correct at and as of the date of this Agreement and at and as of Closing, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except with respect to this clause (iv) where the failure of such representations and warranties to be so true and correct would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (Pages 91-92) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_32 | CONDITIONS TO THE OFFER
The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions set forth in clauses (a) through (g) below. Accordingly, notwithstanding any other provision of the Offer or the Agreement to the contrary, Purchaser shall not be required to accept for payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and may delay the acceptance for payment of, or (subject to any such rules and regulations) the payment for, any tendered Shares, and, to the extent permitted by the Agreement, may terminate the Offer: (i) upon termination of the Agreement in accordance with its terms; and (ii) at any scheduled Expiration Date (subject to any extensions of the Offer pursuant to Section 1.1(c) of the Agreement), if: (A) the Minimum Condition, the Termination Condition and conditions set forth in clauses (d) and (f) of this Annex I shall not be satisfied by the expiration time of the Offer on the Expiration Date; or (B) any of the additional conditions set forth below (other than the conditions set forth in clause (A)) shall not be satisfied or waived in writing by Parent: <omitted> (b) <omitted> (iii) the representations and warranties of the Company set forth in this Agreement (other than those set forth in Sections 3.3(a), 3.3(c), 3.4, 3.8, 3.23 and 3.24) that are qualified by a “Material Adverse Effect” shall be true and correct at and as of the expiration time of the Offer on the Expiration Date as if made at and as of the expiration time of the Offer on the Expiration Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); 1
(iv) the representations and warranties of the Company set forth in this Agreement (other than those set forth in Sections 3.3(a), 3.3(c), 3.4, 3.8, 3.23 and 3.24) that are not qualified by a “Material Adverse Effect” shall be true and correct at and as of the expiration time of the Offer on the Expiration Date as if made at and as of the expiration time of the Offer on the Expiration Date (except to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date), except where the failure of such representations and warranties to be true and correct would not have, individually or in the aggregate, a Material Adverse Effect (Pages 79-80)
CONDITIONS TO THE OFFER <omitted> (iii) the representations and warranties of the Company set forth in this Agreement (other than those set forth in Sections 3.3(a), 3.3(c), 3.4, 3.8, 3.23 and 3.24) that are qualified by a “Material Adverse Effect” shall be true and correct <omitted> ; 1
(iv) the representations and warranties of the Company set forth in this Agreement (other than those set forth in Sections 3.3(a), 3.3(c), 3.4, 3.8, 3.23 and 3.24) that are not qualified by a “Material Adverse Effect” shall be true and correct <omitted> , except where the failure of such representations and warranties to be true and correct would not have, individually or in the aggregate, a Material Adverse Effect (Pages 79-80)
CONDITIONS TO THE OFFER
The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions set forth in clauses (a) through (g) below. Accordingly, notwithstanding any other provision of the Offer or the Agreement to the contrary, Purchaser shall not be required to accept for payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and may delay the acceptance for payment of, or (subject to any such rules and regulations) the payment for, any tendered Shares, and, to the extent permitted by the Agreement, may terminate the Offer: (i) upon termination of the Agreement in accordance with its terms; and (ii) at any scheduled Expiration Date (subject to any extensions of the Offer pursuant to Section 1.1(c) of the Agreement), if: (A) the Minimum Condition, the Termination Condition and conditions set forth in clauses (d) and (f) of this Annex I shall not be satisfied by the expiration time of the Offer on the Expiration Date; or (B) any of the additional conditions set forth below (other than the conditions set forth in clause (A)) shall not be satisfied or waived in writing by Parent: <omitted> (b) (i) the representations and warranties of the Company set forth in Section 3.3(a) (Capitalization, Etc.), Section 3.3(c) (Capitalization, Etc.), Section 3.4 (Authority; Binding Nature of Agreement), Section 3.23 (Takeover Laws) and Section 3.24 (Fairness Opinion) shall be true and correct in all material respects at and as of the expiration time of the Offer on the Expiration Date as if made at and as of the expiration time of the Offer on the Expiration Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period) (Page 79)
CONDITIONS TO THE OFFER <omitted> (i) the representations and warranties of the Company set forth in Section 3.3(a) (Capitalization, Etc.) <omitted> shall be true and correct in all material respects (Page 79)
3.3 Capitalization, Etc. (a) <omitted> The Company owns all of the authorized and outstanding capital stock of its Subsidiary. <omitted> 3.4 Authority; Binding Nature of Agreement. <omitted> The Company Board (at a meeting duly called and held) has <omitted> (c) approved the execution, delivery and performance by the Company of this Agreement and the consummation of the Offer and the Merger <omitted> . This Agreement has been duly executed and delivered by the Company, and assuming due authorization, execution and delivery by Parent and Purchaser, this Agreement constitutes the legal, valid and binding obligation of the Company and is enforceable against the Company in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. <omitted> CONDITIONS TO THE OFFER
The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions set forth in clauses (a) through (g) below. Accordingly, notwithstanding any other provision of the Offer or the Agreement to the contrary, Purchaser shall not be required to accept for payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and may delay the acceptance for payment of, or (subject to any such rules and regulations) the payment for, any tendered Shares, and, to the extent permitted by the Agreement, may terminate the Offer: (i) upon termination of the Agreement in accordance with its terms; and (ii) at any scheduled Expiration Date (subject to any extensions of the Offer pursuant to Section 1.1(c) of the Agreement), if: (A) the Minimum Condition, the Termination Condition and conditions set forth in clauses (d) and (f) of this Annex I shall not be satisfied by the expiration time of the Offer on the Expiration Date; or (B) any of the additional conditions set forth below (other than the conditions set forth in clause (A)) shall not be satisfied or waived in writing by Parent: <omitted> (b) (i) the representations and warranties of the Company set forth in Section 3.3(a) (Capitalization, Etc.), Section 3.3(c) (Capitalization, Etc.), Section 3.4 (Authority; Binding Nature of Agreement), Section 3.23 (Takeover Laws) and Section 3.24 (Fairness Opinion) shall be true and correct in all material respects at and as of the expiration time of the Offer on the Expiration Date as if made at and as of the expiration time of the Offer on the Expiration Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) the representations and warranties of the Company set forth in Section 3.8 (Absence of Changes) shall be true and correct at and as of the expiration time of the Offer on the Expiration Date (Page 79)
3.3 Capitalization, Etc. (a) <omitted> The Company owns all of the authorized and outstanding capital stock of its Subsidiary. <omitted> 3.4 Authority; Binding Nature of Agreement. <omitted> The Company Board (at a meeting duly called and held) has <omitted> (c) approved the execution, delivery and performance by the Company of this Agreement and the consummation of the Offer and the Merger <omitted> . This Agreement has been duly executed and delivered by the Company, and assuming due authorization, execution and delivery by Parent and Purchaser, this Agreement constitutes the legal, valid and binding obligation of the Company and is enforceable against the Company in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. <omitted> CONDITIONS TO THE OFFER <omitted> (i) the representations and warranties of the Company set forth in Section 3.3(a) (Capitalization, Etc.), Section 3.3(c) (Capitalization, Etc.), Section 3.4 (Authority; Binding Nature of Agreement), Section 3.23 (Takeover Laws) and Section 3.24 (Fairness Opinion) shall be true and correct in all material respects <omitted> ; (ii) the representations and warranties of the Company set forth in Section 3.8 (Absence of Changes) shall be true and correct (Page 79) | Capitalization-Other, Authority, Approval, Enforceability, Subsidiaries, No MAE, Takeover Statutes, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_151 | 3.3 Company Board Approval; Fairness Opinion; Anti-Takeover Laws.
<omitted>
(c) Anti-Takeover Laws.
<omitted>
There is no takeover-related provision in the Charter or the Bylaws, or any stockholder rights plan or similar agreement applicable to Parent, this Agreement or the Transactions that would prohibit or restrict the ability of the Company to enter into this Agreement or its ability to consummate the Transactions.
<omitted>
ANNEX I
CONDITIONS TO THE OFFER
<omitted>
Notwithstanding any other term of the Offer or the Agreement to the contrary, Merger Sub will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c)under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject to the provisions of the Agreement) may terminate the Offer and not accept for payment any tendered Shares, at any scheduled Expiration Date (as it may have been extended pursuant to Section 2.1of the Agreement) if <omitted> (ii) any of the additional conditions set forth below are not satisfied or waived in writing by Parent at the Expiration Time:
<omitted>
(d) (i) the representations and warranties set forth in Section 3.2 (Corporate Power; Enforceability), Section 3.3(a) (Company Board Approval) and Section 3.11(a) (Absence of Certain Changes – No MAE) will be true and correct in all respects as of the Expiration Time as if made at and as of the Expiration Time (in each case except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such earlier date); (ii) the representations and warranties set forth in Section 3.6(a) (Capitalization – Capital Stock), Section 3.6(b) (i) (Capitalization – Stock Reservation) and the first sentence
of Section 3.6(c) (Capitalization – Company Securities) will be true and correct in all respects as of the Expiration Time as if at made and as of the Expiration Time (in each case (A) without giving effect to any Company Material Adverse Effect or other materiality qualifications; and (B) except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date), except where the failure to be so true and correct in all respects would not reasonably be expected to result in additional costs, expenses or liabilities to the Company, Parent and their Affiliates in the aggregate in excess of $1,000,000; (iii) the representations and warranties set forth in Section 3.1 (Organization; Good Standing), Section 3.3(b) (Fairness Opinion), Section 3.3(c) (Anti-Takeover Laws), clause (a)(i) of Section 3.4 (Non-Contravention of Charter or Bylaws) and Section 3.23 (Brokers) will be true and correct in all material respects as of the Expiration Time as if made at and as of the Expiration Time (in each case (A) without giving effect to any Company Material Adverse Effect or other materiality qualifications and (B) except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all material respects as of such earlier date); and (iv) each of the other representations and warranties set forth in Article III will be true and correct in all respects as of the Expiration Time as if made at and as of the Expiration Time (in each case (A) without giving effect to any Company Material Adverse Effect or other materiality qualifications and (B) except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such earlier date), except in the case of this clause (iv), where the failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect; (Pages 97-98) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_117 | 7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law: (a) Representations and Warranties of the Company. <omitted> (iii) all other representations and warranties of the Company set forth in Article IV shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or -76-
period of time shall have been true and correct only as of such date or period of time), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality”, “in all material respects” or “Company Material Adverse Effect”) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Pages 80-81)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (iii) all other representations and warranties of the Company set forth in Article IV <omitted> except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct <omitted> would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Pages 80-81)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law: (i) The representations and warranties of the Company set forth in <omitted> Section 4.2(a) (Capital Structure) <omitted> shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except, with respect to Section 4.2(a) <omitted> for any De Minimis Inaccuracies) (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time) (Page 80)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in <omitted> Section 4.2(a) (Capital Structure) <omitted> shall have been true and correct <omitted> (except, with respect to Section 4.2(a) <omitted> for any De Minimis Inaccuracies) (Page 80)
4.1 Organization, Standing and Power. <omitted>
4.2 Capital Structure. <omitted>
All outstanding shares of capital stock or other Equity
Securities of the
Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly-owned Subsidiary of
the Company, are free and clear
of all Encumbrances and have been duly
authorized, validly issued, fully paid and nonassessable. <omitted>
4.3 Authority; No Violations; Consents and Approvals. (a) <omitted>
This Agreement has been duly executed and delivered
by the Company and, assuming the due and valid execution of this
Agreement by Parent and Merger Sub, constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a Proceeding in equity or at law (collectively, “Creditors’ Rights”).
The Company Board, at a meeting duly called and held, has by
unanimous
<omitted>
vote (i) determined that this Agreement and the Transactions, including
the Merger, are fair to, and in the best interests of, the Company and
holders of Company Common Stock, (ii) approved and declared advisable this Agreement and the
Transactions, including the Merger <omitted>
4.6 Absence of Certain Changes or Events. <omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law: <omitted> (a) Representations and Warranties of the Company. (i) The representations and warranties of the Company set forth in the first sentence of Section 4.1 (Organization, Standing and Power), <omitted> the third and fifth sentences of Section 4.2(b) (Capital Structure), Section 4.3(a) (Authority), and Section 4.6(a) (Absence of Certain Changes or Events) shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except, with respect to <omitted> the third and fifth sentences of Section 4.2(b), for any De Minimis Inaccuracies) (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time), (ii) all other representations and warranties of the Company set forth in Section 4.2(b) (Capital Structure) (except for the second sentence of Section 4.2(b)) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct in all material respects only as of such date or period of time), (Page 80)
4.1 Organization, Standing and Power. <omitted>
4.2 Capital Structure. <omitted>
All outstanding shares of capital stock or other Equity
Securities of the
Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly-owned Subsidiary of
the Company, are free and clear
of all Encumbrances and have been duly
authorized, validly issued, fully paid and nonassessable. <omitted>
4.3 Authority; No Violations; Consents and Approvals. (a) <omitted>
This Agreement <omitted> constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, <omitted>
The Company Board, at a meeting duly called and held, has by
unanimous <omitted> vote <omitted> (ii) approved and declared advisable this Agreement and the Transactions, including the Merger <omitted>
4.6 Absence of Certain Changes or Events. <omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in the first sentence of Section 4.1 (Organization, Standing and Power), <omitted> the third and fifth sentences of Section 4.2(b) (Capital Structure), Section 4.3(a) (Authority), and Section 4.6(a) (Absence of Certain Changes or Events) shall have been true and correct <omitted> (except, with respect to <omitted> the third and fifth sentences of Section 4.2(b), for any De Minimis Inaccuracies) <omitted> (ii) all other representations and warranties of the Company set forth in Section 4.2(b) (Capital Structure) (except for the second sentence of Section 4.2(b)) shall have been true and correct in all material respects (Page 80) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_129 | 3.1 Corporate Organization. <omitted>
3.2 Capitalization. <omitted> (b) Sterling owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Sterling Subsidiaries <omitted>
3.3 Authority; No Violation. <omitted> The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including the Merger and the Bank Merger) have been duly and validly approved by the Board of Directors of Sterling <omitted> This Agreement has been duly and validly executed and delivered by Sterling and (assuming due authorization, execution and delivery by Webster) constitutes a valid and binding obligation of Sterling, enforceable against Sterling in accordance with its terms <omitted>
3.7 Broker’s Fees. <omitted>
3.8 Absence of Certain Changes or Events. <omitted>
7.2 Conditions to Obligations of Webster. The obligation of Webster to effect the Merger is also subject to the satisfaction or waiver by Webster at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. The representations and warranties of Sterling set forth in Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of another date, in which case as of such date), and the representations and warranties of Sterling set forth in Sections 3.1(a), 3.1(b) (with respect to Significant Subsidiaries only), 3.2(b) (with respect to Significant Subsidiaries only), 3.3(a) and 3.7 (in each case, read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of another date, in which case as of such date). All other representations and warranties of Sterling set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of another date, in which case as of such date); provided, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on Sterling or the Surviving Corporation. (Page 36) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_108 | Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. The obligation of the Parent Parties to effect the Mergers is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: <omitted> (iii) each of the remaining representations and warranties of the Company Parties 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 as if made as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality,” “in all material respects” or “Company Material Adverse Effect”) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 99)
Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. <omitted> (iii) each of the remaining representations and warranties of the Company Parties set forth in this Agreement shall be true and correct, <omitted> except, in the case of this clause (iii), where the <omitted> would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 99)
Section 3.2 Capital Stock.<omitted> Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. The obligation of the Parent Parties to effect the Mergers is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) Each of the representations and warranties of the Company Parties set forth in the first sentence of <omitted> Section 3.2(a) <omitted> shall be true and correct as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except, with respect to Section 3.2(a) <omitted> for any de minimis inaccuracies) (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date); (Pages 98-99)
Section 3.2 Capital Stock.<omitted> Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers <omitted> (i) Each of the representations and warranties of the Company Parties set forth in <omitted> Section 3.2(a) <omitted> shall be true and correct (except, with respect to Section 3.2(a) <omitted> for any de minimis inaccuracies) (Pages 98-99)
Section 3.1 Organization, Standing and Power. <omitted> Section 3.2 Capital Stock.<omitted> <omitted>
(b) All outstanding shares of capital stock and other voting
securities or equity interests of each such Subsidiary (other than Opco
LLC) are
owned, directly or indirectly, by Opco LLC, free and clear of all pledges, claims, liens, charges, options, rights of
first refusal, encumbrances
and security interests of any kind or nature
whatsoever (including any limitation on voting, sale, transfer or other
disposition or exercise of any
other attribute of ownership) (collectively, “
Liens
”), other than
transfer restrictions of general applicability as may be provided under
the
Securities Act or other applicable securities Laws or as set forth
in the Company Organizational Documents.
<omitted>
Section 3.4 Authority. <omitted> This Agreement has been duly executed and delivered by the Company Parties and, assuming the due authorization, execution and delivery by each Parent Party, constitutes a valid and binding obligation of each Company Party, enforceable against such Company Party in accordance with its terms <omitted> (b) The Company Board, at a meeting duly called and held at which all directors of the Company were present, duly and unanimously adopted resolutions <omitted> (ii) approving and declaring advisable this Agreement and the Transactions <omitted> Section 3.9 Absence of Certain Changes or Events. Since June 30, 2020, <omitted> (b) there has not been any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect; <omitted> Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. The obligation of the Parent Parties to effect the Mergers is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions:(a) Representations and Warranties. (i) Each of the representations and warranties of the Company Parties set forth in the first sentence of Section 3.1(a), <omitted> Section 3.2(c), Section 3.2(f), Section 3.4, and Section 3.9(b) shall be true and correct as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except, with respect to <omitted> Section 3.2(c), for any de minimis inaccuracies) (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date); (ii) each of the other representations and warranties of the Company Parties set forth in Section 3.2 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date); (Pages 98-99)
Section 3.1 Organization, Standing and Power. <omitted>
Section 3.2 Capital Stock.<omitted>
(b) All outstanding shares of capital stock and other voting
securities or equity interests of each such Subsidiary (other than Opco
LLC) are
owned, directly or indirectly, by Opco LLC,
<omitted>
Section 3.4 Authority. <omitted> This Agreement <omitted> constitutes a valid and binding obligation of each Company Party, enforceable against such Company Party in accordance with its terms <omitted> (b) The Company Board, at a meeting duly called and held at which all directors of the Company were present, duly and unanimously adopted resolutions <omitted> (ii) approving and declaring advisable this Agreement and the Transactions <omitted>
Section 3.9 Absence of Certain Changes or Events. <omitted>
Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. <omitted> (i) Each of the representations and warranties of the Company Parties set forth in the first sentence of Section 3.1(a), <omitted> Section 3.2(c), Section 3.2(f), Section 3.4, and Section 3.9(b) shall be true and correct <omitted> (except, with respect to <omitted> Section 3.2(c), for any de minimis inaccuracies) <omitted> (ii) each of the other representations and warranties of the Company Parties set forth in Section 3.2 shall be true and correct in all material respects (Pages 98-99) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_37 | Section 3.1 Qualification, Organization, Subsidiaries <omitted> (b) <omitted> All outstanding shares of capital stock or voting securities of, or other equity interests in, each of the Company Subsidiaries are (i) wholly owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary <omitted>
Section 3.2 Capitalization. <omitted>
Section 3.3 Authorization; Validity of Agreement; Necessary Action. <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery hereof by the other Parties, is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted>
Section 3.4 Corporate Approvals (a)The Company Board of Directors at a duly held meeting has unanimously <omitted> (ii) duly and validly authorized and approved, and declared advisable, the execution, delivery and performance of this Agreement and the consummation of the Company Merger and the other Transactions <omitted>
Section 3.24 Brokers; Expenses.
ANNEX ICONDITIONS TO THE OFFER <omitted> Notwithstanding any other term of the Offer or the Agreement to the contrary, Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Company Shares promptly after the termination or withdrawal of the Offer), to pay for any Company Shares tendered pursuant to the Offer, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Company Shares, and (subject to the provisions of the Agreement) may terminate the Offer and not accept for payment any tendered Company Shares, at any scheduled Expiration Date (as it may have been extended pursuant to Section 1.1 of the Agreement) if (i) the condition in clause (1) below has not been satisfied by one minute after 11:59 p.m., Eastern time, on the Expiration Date (the “Expiration Time”) or (ii) any of the additional conditions set forth below are not satisfied or waived in writing by Parent at the Expiration Time: <omitted> Section 3.28 Investment Company Act. <omitted>
3. (i) The representations and warranties of the Company set forth in the first sentence and second sentence of Section 3.2(a) and the first sentence and second sentence of Section 3.2(b) shall be true and correct in all respects, except for any de minimis inaccuracies, as of the date hereof and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); (ii) the representations and warranties of the Company set forth in first and second sentence of Section 3.1(a), Section 3.1(b), the third sentence of Section 3.2(a), the third sentence of Section 3.2(b), Section 3.2(d), Section 3.2(e), Section 3.3, Section 3.4, Section 3.21, Section 3.24 and Section 3.28 shall be true and correct in all material respects as of the date hereof and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); (iii) the representations and warranties of the Company set forth in Section 3.8(a) shall be true and correct in all respects as of the date hereof and as of the Closing, as if made at and as of such time; (iv) the representations and warranties of the Company set forth in Article III that are qualified by a “Company Material Adverse Effect” qualification shall be true and correct in all respects as so qualified as of the date of this Agreement and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (v) the other representations and warranties of the Company set forth in Article III shall be true and correct as of the date hereof and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except with respect to this clause (v) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to materiality or “Company Material Adverse Effect”) has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 47) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_135 | Section 3.3 Authority. <omitted> This Agreement has been duly executed and delivered by the Company and(assuming the due authorization, execution and delivery by the counterparties hereto) constitutes the valid and binding obligation of the Company,enforceable against the Company in accordance with its terms except to the extent that enforceability (i) may be limited by applicable bankruptcy,insolvency, fraudulent transfer, moratorium, reorganization or similar Laws affecting or relating to creditors’ rights generally (whether now or hereafter ineffect) and (ii) is subject to general principles of equity (the “Enforceability Limitations”). (b)The Company’s Board of Directors (the “Company Board”), at a meeting duly called and held, duly and unanimously adoptedresolutions (i) approving and declaring advisable this Agreement, Merger I, Merger II and the other Transactions, (ii) determining that this Agreement andTransactions are advisable and in the best interests of the Company and its stockholders, (iii) directing that this Agreement be submitted to a vote of thestockholders of the Company for adoption at the Company Stockholder Meeting, and (iv) resolving to make the Company Recommendation. <omitted>
Section 3.4 No Conflict; Consents and Approvals. (a) The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the Transactions, do not and will not (i) conflict with or violate the Company Charter, the Company Bylaws or the comparable charter or organizationaldocuments of any Subsidiary of the Company, (ii) assuming that all consents, approvals and authorizations contemplated by clauses (i) through (vii) of Section 3.4(b) have been obtained and all filings and notifications described in such clauses have been made and any waiting periods related thereto haveterminated or expired, conflict with or violate any U.S. or non-U.S. federal, state or local law, statute, code, directive, ordinance, rule, regulation, order,Judgment, writ, stipulation, award, injunction, decree or other enforceability requirements imposed by a Governmental Entity (collectively, “Law”), in each case that is applicable to any Acquired Company or by which any of its assets or properties is subject or bound, (iii) result in any breach or violation of, orconstitute a default (or an event which with notice or lapse of time or both would become a default), or result in a right of payment or loss of a benefit under,or give rise to any right of termination, cancellation or acceleration of, any Company Material Contract, (iv) result in any breach or violation of any CompanyPlan (including any award agreement thereunder) or (v) result in the creation of any Lien upon any of the material properties or assets of any of theAcquired Companies, other than, in the case of clauses (ii), (iii), (iv) and (v) above, any such items that, individually or in the aggregate, have not had, andwould not reasonably be expected to have, a Company Material Adverse Effect. <omitted>
Section 6.2 Conditions to Obligations of Parent, Merger Sub II and Merger Sub I. The respective obligations of Parent, Merger Sub II and Merger Sub I to effect Merger I are further subject to the satisfaction at the Effective Time of each of the following conditions, any and all of which may be waived, in whole or in part, by Parent: (a) Representations and Warranties. The representations and warranties of the Company set forth in (i) Section 3.1 (Organization, Standing and Power; Subsidiaries), Section 3.3 (Authority), Section 3.4 (No Conflict; Consents and Approvals) and Section 3.21 (Brokers) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except such representations or warranties that were made as of a specific date need to be true and correct in all respects as of such date), (ii) Section 3.2 (Capital Stock) shall be true and correct in all respects, except for any de minimis inaccuracies, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except that such representations or warranties that were made as of a specific date need be true and correct in all respects, except for any de minimis inaccuracies, as of such date) and (iii) any other section of this Agreement (without regard to any materiality or Company Material Adverse Effect qualifiers contained therein) shall be true and correct in all material respects, in either case, as of the date of this Agreement and the Closing Date as though made on or as of such date (except such representations or warranties that were made as of a specific date need to be true and correct in all respects as of such date); provided that the condition in this clause (iii) of this Section 6.2(a) shall be deemed to have been satisfied even if any representations and warranties of Company are not true and correct unless the cumulative effect of the failure of such representations and warranties of the Company, individually or in the aggregate, has resulted in or is reasonably likely to result in a Company Material Adverse Effect. Parent shall have received a certificate of an authorized executive officer of the Company, dated as of the Closing Date, to the foregoing effect. (Page 39) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, No-Conflict | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_29 | Section 3.1 Organization. <omitted>
Section 3.2 Capital Stock. <omitted>
Section 3.3 Corporate Authority Relative to This Agreement; Consents and Approvals; No Violation. <omitted> The Company Board has unanimously (i) declared advisable and approved this Agreement and the Merger, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the Mergers, (iii) resolved to recommend that the stockholders of the Company approve the Merger (the “Company Recommendation”) and (iv) directed that the approval of the Merger be submitted for consideration by the Company’s stockholders at a meeting thereof. This Agreement has been duly and validly executed and delivered by the Company and Company OP, and assuming this Agreement constitutes the legal, valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the legal, valid and binding agreement of the Company and Company OP and is enforceable against the Company and Company OP in accordance with its terms, except as such enforcement may be subject to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other similar Laws of general applicability affecting creditors’ rights generally and the availability of equitable relief and any implied covenant of good faith and fair dealing (the “Enforceability Exceptions”). <omitted>
Section 3.11 Absence of Certain Changes or Events. <omitted>
Section 3.19 Finders or Brokers. <omitted>
Section 6.3 Conditions to Obligation of Parent and Merger Sub to Effect the Mergers. The obligation of Parent and Merger Sub to effect the Mergers is further subject to the fulfillment (or the waiver by Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of the following conditions: (a) (i) Other than the Fundamental Company Representations, the representations and warranties of the Company set forth in Article III that are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the Closing Date as though made at and as of the Closing Date, (ii) other than the Fundamental Company Representations, the representations and warranties of the Company set forth in Article III that are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) Section 3.2(a) shall be true and correct in all but de minimis respects at and as of the Closing Date as though made at and as of the Closing Date and (iv) the Fundamental Company Representations, other than Section 3.2(a), shall be true and correct in all material respects at and as of the Closing Date as though made at and as of the Closing Date (disregarding all qualifications contained therein relating to materiality); provided that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company and Company OP shall have performed and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Effective Time. (c) Since the execution of this Agreement, there has not been a Material Adverse Effect. <omitted> “Fundamental Company Representations” means the representations and warranties of the Company set forth in Section 3.1(a), Section 3.2, Section 3.3(a), Section 3.11(c) and Section 3.19. (Page 30) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_146 | SECTION 3.02 Company Subsidiaries. All the outstanding shares of capital stock or voting securities of, or other equity interests in, each Company Subsidiary have been validly issued and are fully paid and nonassessable, and all of the outstanding shares of capital stock or voting securities of, or other equity interests in, each Company Subsidiary that are owned by the Company or by another Company Subsidiary are so owned free and clear <omitted>
SECTION 3.04 Authority; Execution and Delivery; Enforceability. <omitted> he Company Board has unanimously adopted resolutions, at a meeting duly called at which a quorum of directors of the Company was present <omitted> (b) approving the Company’s execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby <omitted> The Company has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Parent and Merger Sub, this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms <omitted>
SECTION 3.15 Takeover Statutes. <omitted> the Company has no rights plan, “poison pill” or similar agreement that is applicable to this Agreement or the transactions contemplated hereby; <omitted> SECTION 7.03 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger is further subject to the satisfaction or waiver (by Parent and Merger Sub) at or prior to the Closing of each of the following conditions: ( a ) Representations and Warranties . (i) The representations and warranties of the Company contained herein (other than those specified in clause (ii) below) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) as of the date of this Agreement and as of the Closing Date as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of any such representation or warranty to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect and (ii) the representations and warranties of the Company contained in Section 3.01 (Organization, Standing and Power), Section 3.03 (Capital Structure), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.07(b) (Absence of Certain Changes or Events), Section 3.15 (Takeover Statutes), Section 3.25 (Brokers’ Fees and Expenses ) and Section 3.26 (Opinion of Financial Advisors) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) except, in each case, for any de minimis failures of such representations and warranties to be so true and correct. (Page 64) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_25 | SECTION 4.01. Organization, Standing and Power. <omitted>
SECTION 4.03. Capital Structure. <omitted>
SECTION 4.04. Authority; Execution and Delivery; Enforceability. (a) <omitted> The Company Board, by a unanimous vote at a meeting duly called on or prior to the date of this Agreement at which a quorum of directors of the Company was present, adopted resolutions (i) approving this Agreement, the Merger and the Transactions <omitted>
SECTION 4.08. Absence of Certain Changes or Events. <omitted> SECTION 4.18. Brokers’ Fees and Expenses . <omitted>
SECTION 7.03. Conditions to Obligation of Parent. The obligation of Parent and Merger Sub to consummate the Merger is further subject to the following conditions: (a) Representations and Warranties . (i) The representations and warranties of the Company contained in this Agreement (except for the representations and warranties contained in Section <omitted> 4.01 (other than the second sentence of Section 4.01), Section 4.03, Section 4.04(a), Section 4.08(i) and Section 4.18) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) at and as of the date of this Agreement 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 an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (ii) the representations and warranties of the Company contained in Section 4.01 (other than the second sentence of Section 4.01) , Section 4.03, Section 4.04(a) and Section 4.18 shall be true and correct in all material respects at and as of the date of this Agreement 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 an earlier date, in which case as of such earlier date) and (iii) the representations and warranties of the Company contained in Section 4.08(i) shall be true and correct in all respects at and as of the date of this Agreement. Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. (Pages 56-57) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_12 | Conditions to the Offer
Notwithstanding any other provision of the Agreement or the Offer and in addition to (and not in limitation of) Merger Sub’s right to
extend and amend the Offer pursuant to the provisions of the Agreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment or, subject to any applicable rules and regulations of the SEC, including
Rule 14e-1(c) under
the Exchange Act, pay for any Shares validly tendered and not properly withdrawn pursuant to the Offer if any of the following
conditions exist, or have occurred and are continuing, at the scheduled Expiration Time of the Offer:
<omitted>
(d) Representations and Warranties. The representations and warranties of the Company
<omitted>
(iii) set forth in the Agreement, other than those Sections specifically identified in clause (i) or (ii) of this paragraph (d), shall not be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iii), where the failure to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (Page 98)
Conditions to the Offer <omitted> The representations and warranties of the Company <omitted> (iii) set forth in the Agreement, other than those Sections specifically identified in clause (i) or (ii) of this paragraph (d), shall not be true and correct <omitted> except, in the case of this clause (iii), where the failure to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (Page 98)
Conditions to the Offer
Notwithstanding any other provision of the Agreement or the Offer and in addition to (and not in limitation of) Merger Sub’s right to extend and amend the Offer pursuant to the provisions of the Agreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c)under the Exchange Act, pay for any Shares validly tendered and not properly withdrawn pursuant to the Offer if any of the following conditions exist, or have occurred and are continuing, at the scheduled Expiration Time of the Offer:
<omitted>
(d) Representations and Warranties. The representations and warranties of the Company (i) set forth in Section 4.02(a) (Capital Structure) shall not be true and correct in all respects as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure to be true and correct in all respects would not reasonably be expected to result in additional liability to the Company, Parent or their respective Affiliates in excess of $10,000,000 in the aggregate (Page 98)
Conditions to the Offer <omitted> The representations and warranties of the Company (i) set forth in Section 4.02(a) (Capital Structure) shall not be true and correct in all respects <omitted> except where the failure to be true and correct in all respects would not reasonably be expected to result in additional liability to the Company, Parent or their respective Affiliates in excess of $10,000,000 in the aggregate (Page 98)
Section 4.02. Capital Structure.
(g) Section 4.02(g)
of the Company Disclosure Schedule sets forth: (i) each of the
Company’s Subsidiaries; (ii) whether or not
each such Subsidiary is a Wholly Owned Subsidiary (any Subsidiary that is not a Wholly Owned Subsidiary, a “Non-Wholly Owned Subsidiary”); and (iii) for each Non-Wholly Owned Subsidiary, (A) the percentage of the Company’s ownership interest, direct or indirect, and the number and type of capital stock
or other securities owned by the Company, directly or indirectly, in
each such Subsidiary, and (B) the percentage of such other Person or
Persons’ ownership interest and the number and type of capital stock or other securities owned by such other Person or Persons in each such Subsidiary, and the name and jurisdiction of organization (if applicable) of such other Person or Persons.
<omitted>
Section 4.03.
Corporate Authority; Approval and Fairness.
<omitted>
This Agreement has been
duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception. <omitted>
Section 4.24. Critical Technologies. The Company has conducted an assessment and determined that neither the Company nor any of its Subsidiaries or Affiliates produces, designs, tests, manufactures, fabricates, or develops “critical technologies” as that term is defined in 31 C.F.R. § 800.215. <omitted>
Conditions to the Offer Notwithstanding any other provision of the Agreement or the Offer and in addition to (and not in limitation of) Merger Sub’s right to extend and amend the Offer pursuant to the provisions of the Agreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c)under the Exchange Act, pay for any Shares validly tendered and not properly withdrawn pursuant to the Offer if any of the following conditions exist, or have occurred and are continuing, at the scheduled Expiration Time of the Offer: <omitted> (ii) set forth in Section 4.01(a) (Organization, Good Standing and Qualification), Section 4.02 (Capital Structure) (other than clause (a)), Section 4.03 (Corporate Authority; Approval and Fairness), Section 4.04(b)(i) (No Violations), Section 4.11(a) (Absence of Certain Changes), Section 4.20 (Takeover Statutes), Section 4.21 (Brokers and Finders) and Section 4.02 (Critical Technology) shall not be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) in all material respects as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date (Page 98)
Section 4.02. Capital Structure.
(g) Section 4.02(g)
of the Company Disclosure Schedule sets forth: (i) each of the
Company’s Subsidiaries; (ii) whether or not
each such Subsidiary is a Wholly Owned Subsidiary (any Subsidiary that is not a Wholly Owned Subsidiary, a “Non-Wholly Owned Subsidiary”); and (iii) for each Non-Wholly Owned Subsidiary, (A) the percentage of the Company’s ownership interest, direct or indirect, and the number and type of capital stock
or other securities owned by the Company, directly or indirectly, in
each such Subsidiary, and (B) the percentage of such other Person or
Persons’ ownership interest and the number and type of capital stock or other securities owned by such other Person or Persons in each such Subsidiary, and the name and jurisdiction of organization (if applicable) of such other Person or Persons.
<omitted>
Section 4.03.
Corporate Authority; Approval and Fairness.
<omitted>
This Agreement has been
duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, <omitted>
Section 4.24. Critical Technologies. The Company has conducted an assessment and determined that neither the Company nor any of its Subsidiaries or Affiliates produces, designs, tests, manufactures, fabricates, or develops “critical technologies” as that term is defined in 31 C.F.R. § 800.215.
<omitted>
Conditions to the Offer <omitted> The representations and warranties of the Company <omitted> (ii) set forth in Section 4.01(a) (Organization, Good Standing and Qualification), Section 4.02 (Capital Structure) (other than clause (a)), Section 4.03 (Corporate Authority; Approval and Fairness), Section 4.04(b)(i) (No Violations), Section 4.11(a) (Absence of Certain Changes), Section 4.20 (Takeover Statutes), Section 4.21 (Brokers and Finders) and Section 4.02 (Critical Technology) shall not be true and correct <omitted> in all material respects (Page 98) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_11 | 3.1 Corporate Organization. (a) Organization. <omitted>
3.2 Capitalization. <omitted>
3.3 Authority; No Violation. (a) <omitted> The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved and this Agreement duly adopted by the Company Board. <omitted> This Agreement has been duly and validly executed and delivered by the Company and(assuming due authorization, execution and delivery by Parent) constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (except as may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium,reorganization or similar Laws of general applicability relating to or affecting the rights of creditors generally and subject to general principlesof equity (the “Bankruptcy and Equity Exception”)). (b) Neither the execution and delivery of this Agreement by the Company, nor the consummation by the Company of theMergers or the other transactions contemplated hereby, nor compliance by the Company with any of the terms or provisions of thisAgreement, will <omitted> (ii) assuming that the consents, approvals and filings referred to in Section 3.4 are duly obtained and/or made, <omitted> (B) violate, conflict with, result in a breachof any provision of or the loss of any benefit under, constitute a default (or an event that, with notice or lapse of time, or both, wouldconstitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by,or result in the creation of any Lien upon any of the respective properties or assets of the Company or any of its Subsidiaries under, any of theterms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, franchise, permit, agreement, bylaw orother instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respectiveproperties or assets is bound. <omitted>
3.7 Broker’s Fees. <omitted>
3.8 Absence of Changes. Since December 31, 2019, and through the date of this Agreement: (1) the Company and its Subsidiaries have conducted their business in all material respects in the ordinary and usual course of business consistent with past practice (except with respect to this Agreement and discussions, negotiations and transactions related thereto), and (2) no state of facts, circumstance, condition, event, change, development, occurrence, result, or effect (each an “Effect”) has occurred that -15-
has had or would reasonably be expected to have, either individually or in the aggregate with any one or more other Effects, a MaterialAdverse Effect on the Company. <omitted>
3.10 State Takeover Laws. No “business combination,” “fair price,” “affiliate transaction,” “moratorium,” “control share,” “takeover” or“interested shareholder” Law or other similar anti-takeover statute or regulation (collectively, the “Takeover Laws”) is applicable to this Agreement or the transactions contemplated hereby. The Company does not have any shareholder rights plan, “poison pill” or similar plan or arrangement in effect. <omitted>
7.2 Conditions to Obligations of Parent. The obligation of Parent to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time, of the following conditions: (a) Representations and Warranties. The representations and warranties of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Effective Time as though made on and as of the Effective Time (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct as of such date); provided, however, that no representation or warranty of the Company (other than the representations and warranties set forth in (i) Section 3.2(a), which shall be true and correct except to a de minimis extent (relative to Section 3.2(a) taken as a whole), (ii) Sections 3.1(a), 3.2(c), 3.3(a), 3.3(b), 3.7 and 3.10, which shall be true and correct in all material respects, and (iii) Section 3.8, which shall be true and correct in all respects) shall be deemed untrue or incorrect for purposes hereunder as a consequence of the existence of any fact, event or circumstance inconsistent with such representation or warranty, unless such fact, event or circumstance, individually or taken together with all other facts, events or circumstances inconsistent with any representation or warranty of the Company has had or would reasonably be expected to result in a Material Adverse Effect on the Company; provided, further, that for purposes of determining whether a representation or warranty is true and correct for purposes of this Section 7.2(a) any qualification or exception for, or reference to, materiality (including the terms “material,” “materially,” “in all material respects,” “Material Adverse Effect” or similar terms or phrases) in any such representation or warranty shall be disregarded; and Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company to the foregoing effect. (Page 73) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, No-Conflict, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_128 | “Company Fundamental Representations” means the representations and warranties contained in Section 3.1, Section 3.2, Section 3.3, Section 3.4, clause (a) of Section 3.5, Section 3.7(d) and Section 3.25. <omitted>
Specified Company Fundamental Representations” means, collectively, the representations and warranties contained in Section 3.7(a), the firstsentence of Section 3.7(b) and Section 3.7(c). <omitted>
3.1 Organization; Good Standing. <omitted>
3.2 Corporate Power; Enforceability. <omitted>
3.3 Company Board Approval; Fairness Opinion; Anti-Takeover Laws. <omitted>
3.4 Requisite Stockholder Approval. <omitted>
3.5 Non-Contravention. <omitted>
3.7 Company Capitalization. <omitted>
3.12 Absence of Certain Changes. ( a ) No Company Material Adverse Effect. (ii) since March 31, 2021 through the Agreement Date, there has not occurred a Company Material Adverse Effect. <omitted>
3.25 Brokers. <omitted>
7 . 2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction or waiver (where permissible pursuant to applicable Law) prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent: (a) Representations and Warranties. (i) Other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.12(a)(ii), the representations and warranties of the Company contained in Article III shall be true and correct both at and as of the Agreement Date and at and as of the Closing Date as though made at and as of the Closing Date (except to the extent such representations and warranties speak as of a specified date, in which case they need only be true and correct as of such specified date), and shall be interpreted without giving effect to the words “materially” or “material” or to any qualifications based on such terms or based on the term “Company Material Adverse Effect”, except where the failure of such representations and warranties to be true and correct, in the aggregate, does not constitute a Company Material Adverse Effect. (ii) The Company Fundamental Representations that (A) are not qualified by the words “materially” or “material” or any qualifications based on such terms or based on the term “Company Material Adverse Effect” shall be true and correct in all material respects both at and as of the Agreement Date and at and as of the Closing Date as though made at and as of the Closing Date (except to the extent such representations and warranties speak as of a specified date, in which case they need only be true and correct in all material respects as of such specified date) and (B) that are qualified by the words “materially” or “material” or any qualifications based on such terms or based on the term “Company Material Adverse Effect” shall be true and correct in all respects (and, for the avoidance of doubt, taking into account such qualifications) both at and as of the Agreement Date and at and as of the Closing Date as though made at and as of the Closing Date (except to the extent such representations and warranties speak as of a specified date, in which case they need only be true and correct as of such specified date). 87
(iii) The representations and warranties set forth in Section 3.12(a)(ii) shall be true and correct in all respects. ( i v ) The Specified Company Fundamental Representations shall be true and correct in all respects as of the Closing Date except where the failure to be so true and correct in all respects would not reasonably be expected to result in the requirement of Parent to pay pursuant to Section 2.7(a) (ii), Section 2.8(a)(i) and Section 2.8(b)(i) additional Merger Consideration in excess of $35,000,000 over the amount of Merger Consideration that would have been payable pursuant to Section 2.7(a)(ii), Section 2.8(a)(i) and Section 2.8(b)(i) had the Specified Company Fundamental Representations been true and correct in all respects as of the Closing Date. (Pages 91-92) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_127 | SECTION 3.01. Organization; Standing. <omitted>
SECTION 3.02. Capitalization. <omitted>
SECTION 3.03. Authority; Noncontravention. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery <omitted> hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, <omitted> (b) The Board of Directors of the Company, acting upon the unanimous recommendation of the Strategic Alternatives Committee, at a meeting duly called and held, unanimously adopted resolutions (i) determining that the Transactions are advisable, fair to and in the best interests of the Company and its stockholders, (ii) approving and declaring advisable the execution, delivery and performance by the Company of this Agreement and the consummation of the Transactions, <omitted>
SECTION 3.06. Absence of Certain Changes. Since December 31, 2020 through the date of this Agreement <omitted> (b) there has not been any Material Adverse Effect or any event, change or occurrence that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. <omitted>
SECTION 3.15. No Rights Agreement; Anti-Takeover Laws. <omitted>
SECTION 3.21. Stockholder Approval. <omitted>
SECTION 3.24. Brokers and Other Advisors. <omitted>
SECTION 6.02. Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction (or waiver by Parent, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Company (i) set forth in Section 3.02(a) and the first sentence of Section 3.02(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except for de minimis inaccuracies, (ii) set forth in the first sentence of Section 3.01, Section 3.03(a), Section 3.03(b), Section 3.15, Section 3.21 and Section 3.24 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, with the same effect as though made as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (iii) set forth in Section 3.06(b) shall be true and correct in all respects as of the date of this Agreement, and (iv) set forth in the Agreement, other than those Sections specifically identified in clauses (i), (ii) and (iii) of this Section 6.02(a), shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date, with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iv), where the failure to be true and correct, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. (Page 58) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_124 | 4.1 Organization, Standing, and Power. <omitted>
4.2 Authority of SB; No Breach By Agreement. <omitted>
The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated herein, including the Merger, have been duly and validly authorized by all necessary corporate action in respect thereof on the part of SB, (including approval by at least a majority of the members of SB’s board of directors unaffiliated with any other party to the proposed transaction) <omitted> this Agreement represents a legal, valid, and binding obligation of SB, enforceable against SB in accordance with its terms <omitted>
4.3 Capital Stock. <omitted>
4.24 Brokers and Finders; Opinion of Financial Advisor. <omitted>
8.2 Conditions to Obligations of Buyer. The obligations of Buyer to perform this Agreement and consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction of the following conditions, unless waived by Buyer pursuant to Section 10.6(a): (a) Representations and Warranties. For purposes of this Section 8.2(a), the accuracy of the representations and warranties of SB set forth in this Agreement shall be assessed as of the date of this Agreement and as of the Effective Time with the same effect as though all such representations and warranties had been made on and as of the Effective Time (provided, that representations and warranties which are confined to a specified date shall speak only as of such date). The representations and warranties set forth in Sections 4.1, 4.2(a), 4.2(b)(i), 4.3, and 4.24 shall be true and correct (except for inaccuracies which are de minimis in amount or effect). There shall not exist inaccuracies in the representations and warranties of SB set forth in this Agreement (including the representations and warranties set forth in Sections 4.1, 4.2(a), 4.2(b)(i), 4.3, and 4.24) such that the aggregate effect of such inaccuracies has, or is reasonably likely to have, an SB Material Adverse Effect; provided, that for purposes of this sentence only, those representations and warranties which are qualified by references to “material” or “Material Adverse Effect” or to the “Knowledge” of any Person shall be deemed not to include such qualifications. (Page 25) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_142 | 3.2 Capital Stock <omitted>
(b) <omitted> All of the
shares of capital stock or other voting securities or equity interests of each such Subsidiary are owned, directly or indirectly, by the Company, free and clear of all Liens (other than Permitted Liens).
3.4 Authority. <omitted> (a) <omitted>
This Agreement has been duly executed and delivered by the Company and,
assuming the due authorization, execution
and delivery by Parent and Purchaser, constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by (i) the laws of general application relating to bankruptcy, insolvency, reorganization and moratorium and similar Laws affecting the enforcement of creditors’ rights or remedies in general as from time to time in effect or (ii) the exercise by courts of equity powers (the “Bankruptcy and Equity Exception”).
(b) The Company Board, at a meeting duly called and held at which all of the directors of the Company were present, and by the
unanimous vote of all directors of the Company, duly adopted resolutions which: (i) determined that the terms of this Agreement, and the Transactions are advisable and fair to, and in the best interest of the Company and the Company Stockholders; (ii) agreed that the Agreement shall be subject to Section 251(h) of the DGCL; (iii) approved the execution, delivery and performance by the
Company of this Agreement and the consummation of the Transaction
<omitted>
CONDITIONS TO THE OFFER
The obligation of Purchaser to accept for payment and pay for Company Shares validly tendered (and not withdrawn) pursuant to the Offer, subject to the rights and obligations of Purchaser to extend and/or amend the Offer in accordance with the terms and conditions of the Agreement, is subject to the satisfaction of the conditions set forth in clauses “(i)” through “(viii)” below. <omitted>
(ii) (a) the representations and warranties of the Company set forth in Sections 3.2(a) (first sentence only) and 3.2(b) (Capital Stock) of the Agreement shall have been accurate in all respects as of the Agreement Date and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date, except (other than a result of a willful breach by the Company) de minimis inaccuracies (it being understood that, for purposes of determining the accuracy of such representations and warranties, (1) any update of or modification to the Company Disclosure Letter made or purported to have been made after the Agreement Date shall be disregarded and (2) the accuracy of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this clause (a)) only as of such date; Annex I-1
(b) the representations and warranties of the Company set forth in Sections 3.1 (Organization, Standing and Power), 3.4 (Authority), 3.21 (Takeover Statutes), 3.23 (Brokers), 3.24 (No Vote Required) and 3.25 (first sentence only) (Opinion of Financial Advisor) of the Agreement shall have been accurate in all material respects as of the Agreement Date, and shall be accurate in all material respects at and as of the Offer Acceptance Time as if made on and as of such Closing Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (1) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (2) any update of or modification to the Company Disclosure Letter made or purported to have been made after the Agreement Date shall be disregarded and (3) the accuracy of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this clause (b)) only as of such date); (c) the representations and warranties of the Company set forth in clause “(b)” of the first sentence of Section 3.8 (Absence of Certain Changes or Events) shall have been accurate in all respects as of the Agreement Date and shall be accurate in all respects at and as of the Offer Acceptance Time as if made on and as of such time (it being understood that any update of or modification to the Company Disclosure Letter made or purported to have been made after the Agreement Date shall be disregarded); (d) the representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses “(a)”, “(b)” or “(c)” above) shall have been accurate in all respects as of the Agreement Date, and shall be accurate in all respects at and as of the Offer Acceptance Time as if made on and as of such time, except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively), do not constitute, and would not reasonably be expected to have, a Company Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (1) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (2) any update of or modification to the Company Disclosure Letter made or purported to have been made after the Agreement Date shall be disregarded and (3) the accuracy of those representations or warranties that address matters only as of a specific date shall be measured only as of such date); (Pages 104-105) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_122 | 5.2 Additional Conditions Precedent to Parent’s Obligations.
The obligation of Parent to cause the Merger to be effected and
otherwise cause the
transactions contemplated by this Agreement to be consummated are
subject to the satisfaction or waiver by Parent, as of
the Closing, of
each of the following conditions:
<omitted>
(iii) the representations and warranties of the Company set forth in this Agreement (other than those representations and warranties referred to in the foregoing clauses (i) and (ii)) shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and <omitted>
warranty shall be so true and accurate as of such particular date or period of time), except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in a Company Material Adverse Effect; (Pages 70-71)
5.2 Additional Conditions Precedent to Parent’s Obligations.
<omitted>
(iii) the representations and warranties of the Company set forth in this Agreement (other than those representations and warranties referred to in the foregoing clauses (i) and (ii)) shall have been true and accurate in all respects <omitted> except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in a Company Material Adverse Effect; (Pages 70-71)
2.3 Capitalization. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (Page 70)
2.3 Capitalization. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (Page 70)
2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
2.3 Capitalization. <omitted> (d) Except as set forth in Section 2.3(c), as of the Company Capitalization Date, there was no <omitted> (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company or any Company Subsidiary is or may become obligated to sell or otherwise issue any shares of its capital stock or other equity interest or any other securities. <omitted>
2.4 Authority; Binding Nature of Agreement. <omitted> The Company Board has unanimously: <omitted> (c) approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including the Merger; <omitted> This Agreement has been duly executed and delivered on behalf of the Company and, assuming the due authorization, execution and delivery of this Agreement on behalf of Parent and Acquisition Sub and the accuracy of the representations and warranties set forth in Section 3.10, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms
2.5 Vote Required. <omitted>
2.6 Non-Contravention; Consents. <omitted>
2.20 Takeover Statutes. <omitted>
2.23 Brokers. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (ii) the representations and warranties of the Company contained in Section 2.1(a) (first sentence only), Section 2.3(f), Section 2.4, Section 2.5, Section 2.6(a)(i), Section 2.20 and Section 2.23 shall have been true and accurate in all material respects at and as of the date hereof and shall be true and accurate in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate in all material respects as of such particular date or period of time); provided, however, that, in the case of this clause (ii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; (Page 70)
2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
2.3 Capitalization. <omitted> (d) Except as set forth in Section 2.3(c), as of the Company Capitalization Date, there was no <omitted> (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company or any Company Subsidiary is or may become obligated to sell or otherwise issue any shares of its capital stock or other equity interest or any other securities. <omitted>
2.4 Authority; Binding Nature of Agreement. <omitted> The Company Board has unanimously: <omitted> (c) approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including the Merger; <omitted> This Agreement has been duly executed and delivered on behalf of the Company and, assuming the due authorization, execution and delivery of this Agreement on behalf of Parent and Acquisition Sub and the accuracy of the representations and warranties set forth in Section 3.10, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms
2.5 Vote Required. <omitted>
2.6 Non-Contravention; Consents. <omitted>
2.20 Takeover Statutes. <omitted>
2.23 Brokers. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (ii) the representations and warranties of the Company contained in Section 2.1(a) (first sentence only), Section 2.3(f), Section 2.4, Section 2.5, Section 2.6(a)(i), Section 2.20 and Section 2.23 shall have been true and accurate in all material respects at and as of the date hereof and shall be true and accurate in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate in all material respects as of such particular date or period of time); provided, however, that, in the case of this clause (ii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; (Page 70) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_110 | Section 7.3 Additional Parent Conditions to Closing. The obligation of Parent and Merger Sub to consummate the Merger is further conditioned upon satisfaction (or waiver by Parent) at or prior to the Closing of each of the following:
(a) Representations and Warranties. The representations and warranties of the Company contained in (i) this Agreement (other than those set forth in Section 4.1 (solely with respect to the Company), Section 4.2(a), Section 4.4, Section 4.8(a) and Section 4.22) are true and correct as of the date of this Agreement and as of the Closing Date, as if made as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in any such representation or warranty) would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, (Page 84)
Section 7.3 Additional Parent Conditions to Closing. <omitted>
The representations and warranties of the Company contained in (i) this Agreement (other than those set forth in Section 4.1 (solely with respect to the Company), Section 4.2(a), Section 4.4, Section 4.8(a) and Section 4.22) are true and correct <omitted> except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in any such representation or warranty) would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, (Page 84)
Section 4.2 Capital Structure. <omitted>
Section 7.3 Additional Parent Conditions to Closing.
The obligation of Parent and Merger Sub to consummate the Merger is
further conditioned upon satisfaction (or waiver by Parent) at or prior
to the Closing of each of the following:
(a) Representations and Warranties. The representations and warranties of the Company contained in
<omitted>
(iii) Section 4.2(a) <omitted> are true and correct as of the date of this Agreement and as of the Closing Date, as if made as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except for any immaterial inaccuracies (Page 84)
Section 4.2 Capital Structure. <omitted>
Section 7.3 Additional Parent Conditions to Closing.
<omitted>
The representations and warranties of the Company contained in <omitted>
(iii) Section 4.2(a) <omitted> are true and correct <omitted> except for any immaterial inaccuracies (Page 84)
Section 4.1 Organization, General Authority and Standing.
<omitted>
Section 4.2 Capital Structure.
<omitted>
Section 4.4 Authority; Execution and Delivery; Enforceability.
<omitted> (b) The Company Board, at a meeting duly called and held, (i) determined that this Agreement and the Transactions are fair to, and in the best interests of, the Company’s stockholders, (ii) adopted, approved and declared advisable this Agreement and the Transactions
<omitted>
Section 4.8 Absence of Certain Changes or Events.
<omitted>
Section 4.22 Brokers and Other Advisors. <omitted>
Section 7.3 Additional Parent Conditions to Closing. The obligation of Parent and Merger Sub to consummate the Merger is further conditioned upon satisfaction (or waiver by Parent) at or prior to the Closing of each of the following:
(a) Representations and Warranties. The representations and warranties of the Company contained in
<omitted>
(ii) Section 4.1 (solely with respect to the Company) and Section 4.4 are true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as if made as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), (iii) Section 4.2(a) and Section 4.22 are true and correct as of the date of this Agreement and as of the Closing Date, as if made as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except for any immaterial inaccuracies and (iv) Section 4.8(a) are true and correct as of the date of this Agreement, as if made as of such time. (Page 84)
Section 4.1 Organization, General Authority and Standing.
<omitted>
Section 4.2 Capital Structure.
<omitted>
Section 4.4 Authority; Execution and Delivery; Enforceability.
<omitted> (b) The Company Board, at a meeting duly called and held, <omitted> (ii) adopted, approved and declared advisable this Agreement and the Transactions
<omitted>
Section 4.8 Absence of Certain Changes or Events.
<omitted>
Section 4.22 Brokers and Other Advisors. <omitted>
Section 7.3 Additional Parent Conditions to Closing.
<omitted>
The representations and warranties of the Company contained in
<omitted>
(ii) Section 4.1 (solely with respect to the Company) and Section 4.4 are true and correct in all material respects <omitted> (iii) Section 4.2(a) and Section 4.22 are true and correct <omitted> except for any immaterial inaccuracies and (iv) Section 4.8(a) are true and correct (Page 84) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_63 | Conditions to the Offer
Notwithstanding
any other provision of the Agreement or the Offer and in addition to (and not in limitation of) Merger Sub’s
right to extend and amend
the Offer pursuant to the provisions of the Agreement, Merger Sub shall not be required to (and Parent shall
not be required to cause Merger Sub to) accept for
payment or, subject to any applicable rules and regulations of the SEC, including
Rule 14e-1(c) under the Exchange Act, pay for any Shares validly tendered and
not properly withdrawn pursuant to the Offer if any of the
following conditions exist, or have occurred and are continuing, at the scheduled Expiration Time of the
Offer:
<omitted>
(f) Representations and Warranties. The representations and warranties of the Company
<omitted>
(iii) set forth in the Agreement, other than those Sections specifically identified in clause (i) or (ii) of this paragraph (f), shall not be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the Expiration Time with the same effect as though made as of the date of this Agreement and as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iii), where the failure to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (Page 43)
Conditions to the Offer
The representations and warranties of the Company
<omitted>
(iii) set forth in the Agreement, <omitted> shall not be true and correct <omitted> except, in the case of this clause (iii), where the failure to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (Page 43)
Conditions to the Offer
Notwithstanding
any other provision of the Agreement or the Offer and in addition to (and not in limitation of) Merger Sub’s
right to extend and amend
the Offer pursuant to the provisions of the Agreement, Merger Sub shall not be required to (and Parent shall
not be required to cause Merger Sub to) accept for
payment or, subject to any applicable rules and regulations of the SEC, including
Rule 14e-1(c) under the Exchange Act, pay for any Shares validly tendered and
not properly withdrawn pursuant to the Offer if any of the
following conditions exist, or have occurred and are continuing, at the scheduled Expiration Time of the
Offer:
<omitted>
(f) Representations and Warranties. The representations and warranties of the Company (i) set forth in Section 4.02(a) (Capital Structure) shall not be true and correct in all respects as of the date of this Agreement and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except for de minimis inaccuracies; (Page 43)
Conditions to the Offer
<omitted>
The representations and warranties of the Company (i) set forth in Section 4.02(a) (Capital Structure) shall not be true and correct in all respects except for de minimis inaccuracies (Page 43)
Section 4.02. Capital Structure. <omitted> (j) <omitted> Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and non-assessable and, except for any directors’ qualifying shares and any shares of capital stock or other securities of any Non-Wholly Owned Subsidiaries owned by such Persons contemplated by Section 4.02(h)(iii)(B), owned by the Company or by a Wholly Owned Subsidiary of the Company, free and clear of any Encumbrance (other than any Permitted Encumbrance contemplated by clauses (d) and (e) of the definition thereof). <omitted>
Section 4.03. Corporate Authority; Approval and Fairness. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception. (b) The Company Board has, at a duly convened and held meeting: (i) unanimously (A) approved and declared advisable this Agreement and the transactions contemplated by this Agreement <omitted> (ii) received the opinion of its financial advisor, D.A. Davidson & Co., to the effect that the Offer Price and the Merger Consideration to be received by the holders of the Shares (other than Excluded Shares) is fair from a financial point of view, as of the date of such opinion, to the such holders, a copy of which opinion has been delivered to Parent solely for informational purposes <omitted>
4.04. Governmental Filings; No Violations
<omitted>
(b)
The execution
and delivery of and performance under this Agreement by the Company do
not, and the consummation of the
transactions contemplated by this Agreement, will not: (i) constitute or result in a
breach or violation of or a contravention or conflict with the Organizational
Documents of (x) the Company
<omitted>
Conditions to the Offer
Notwithstanding
any other provision of the Agreement or the Offer and in addition to (and not in limitation of) Merger Sub’s
right to extend and amend
the Offer pursuant to the provisions of the Agreement, Merger Sub shall not be required to (and Parent shall
not be required to cause Merger Sub to) accept for
payment or, subject to any applicable rules and regulations of the SEC, including
Rule 14e-1(c) under the Exchange Act, pay for any Shares validly tendered and
not properly withdrawn pursuant to the Offer if any of the
following conditions exist, or have occurred and are continuing, at the scheduled Expiration Time of the
Offer:
<omitted>
(f) Representations and Warranties. The representations and warranties of the Company
<omitted>
(ii) set forth in Section 4.01(a) (Organization, Good Standing and Qualification), Section 4.02 (Capital Structure) (other than clause (a)), Section 4.03 (Corporate Authority; Approval and Fairness), Section 4.04(b)(i)(x) (No Violations) and Section 4.22 (Brokers and Finders) shall not be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) in all material respects as of the date of this Agreement and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date (Page 43)
Section 4.02. Capital Structure. <omitted> (j) <omitted> Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and non-assessable and, except for any directors’ qualifying shares and any shares of capital stock or other securities of any Non-Wholly Owned Subsidiaries owned by such Persons contemplated by Section 4.02(h)(iii)(B), owned by the Company or by a Wholly Owned Subsidiary of the Company, free and clear of any Encumbrance (other than any Permitted Encumbrance contemplated by clauses (d) and (e) of the definition thereof). <omitted>
Section 4.03. Corporate Authority; Approval and Fairness. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception. (b) The Company Board has, at a duly convened and held meeting: (i) unanimously (A) approved and declared advisable this Agreement and the transactions contemplated by this Agreement <omitted> <omitted> (ii) received the opinion of its financial advisor, D.A. Davidson & Co., to the effect that the Offer Price and the Merger Consideration to be received by the holders of the Shares (other than Excluded Shares) is fair from a financial point of view, as of the date of such opinion, to the such holders, a copy of which opinion has been delivered to Parent solely for informational purposes <omitted>
4.04. Governmental Filings; No Violations
<omitted>
(b)
The execution
and delivery of and performance under this Agreement by the Company do
not, and the consummation of the
transactions contemplated by this Agreement, will not: (i) constitute or result in a
breach or violation of or a contravention or conflict with the Organizational
Documents of (x) the Company
<omitted>
Conditions to the Offer
<omitted>
The representations and warranties of the Company
<omitted>
(ii) set forth in Section 4.01(a) (Organization, Good Standing and Qualification), Section 4.02 (Capital Structure) (other than clause (a)), Section 4.03 (Corporate Authority; Approval and Fairness), Section 4.04(b)(i)(x) (No Violations) and Section 4.22 (Brokers and Finders) shall not be true and correct <omitted> in all material respects (Page 43) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_39 | Section 3.3 Authorization; Enforceability <omitted> The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Company Board. <omitted> The execution, delivery and performance of this Agreement by the Company, and the consummation by it of its obligations under this Agreement, have been authorized by all necessary corporate action, subject to the Company Shareholder Approval, and, subject to the receipt of the Requisite Regulatory Approvals and assuming the due authorization, execution and delivery of this Agreement by Nicolet, this Agreement constitutes a legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other Legal Requirements affecting creditors’ rights generally and subject to general principles of equity. <omitted>
Section 3.5 Capitalization <omitted>
Section 8.1 Accuracy of Representations and Warranties. For purposes of this Section 8.1, the accuracy of the representations and warranties of the Company set forth in this Agreement shall be assessed as of the date of this Agreement and as of the Closing Date (or such other date(s) as specified, to the extent any representation or warranty speaks as of a specific date). The representations and warranties set forth in Section 3.3 and Section 3.5(a) shall be true and correct (except for inaccuracies which are de minimis in amount and effect). There shall not exist inaccuracies in the representations and warranties of the Company set forth in this Agreement (including the representations set forth in Section 3.3 and Section 3.5(a)) such that the aggregate effect of such inaccuracies has, or is reasonably likely to have, a Material Adverse Effect on the Company; provided that, for purposes of this sentence only, those representations and warranties which are qualified by references to “material” or “Material Adverse Effect” or to the “Knowledge” of any Person shall be deemed not to include such qualifications. (Pages 51-52) | Authority, Approval, Enforceability | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_138 | Section 9.02. Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) <omitted> (iii) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true in all respects at and as of the date of this Agreement and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions in 65 the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . <omitted> (b) <omitted> (iii) the other representations and warranties of the Company contained in this Agreement <omitted> shall be true in all respects <omitted> with only such exceptions in the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 4.05. Capitalization. <omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) <omitted> (ii) the representations and warranties of the Company contained in Section 4.05(a) <omitted> shall be true and correct in all respects (other than de minimis inaccuracies) contained therein at and as of the date of this Agreement and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time)
<omitted>
with only such exceptions
in the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 4.05. Capitalization. <omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . <omitted> (b) <omitted> (ii) the representations and warranties of the Company contained in Section 4.05(a) <omitted> shall be true and correct in all respects (other than de minimis inaccuracies)
<omitted>
with only such exceptions
in the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 4.02. Corporate Authorization. (a) <omitted> The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by each of Parent and Merger Sub, this Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted> (b) At a meeting duly called and held, the Board of Directors (upon the unanimous recommendation of the Special Committee) has <omitted> (ii) approved, adopted and declared advisable this Agreement and the transactions contemplated hereby
<omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) (i) the representations and warranties of the Company contained in the first sentence of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(b) (Capitalization) Section 4.06(b) (Subsidiaries) (except for the first sentence thereof), Section 4.23 (Finders’ Fees) and Section 4.24 (Anti-Takeover Statutes) (except in the case of the first sentence of Section 4.01, disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects at and as of the date of this Agreement and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), (ii) the representations and warranties of the Company contained in Section 4.05(a), Section 4.05(c), the first sentence of Section 4.06(b) and Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects (other than de minimis inaccuracies) contained therein at and as of the date of this Agreement and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time)
<omitted>
with only such exceptions
in
65
the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 4.02. Corporate Authorization. (a) <omitted> The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by each of Parent and Merger Sub, this Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted> (b) At a meeting duly called and held, the Board of Directors (upon the unanimous recommendation of the Special Committee) has <omitted> (ii) approved, adopted and declared advisable this Agreement and the transactions contemplated hereby
<omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) (i) the representations and warranties of the Company contained in the first sentence of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(b) (Capitalization) Section 4.06(b) (Subsidiaries) (except for the first sentence thereof), Section 4.23 (Finders’ Fees) and Section 4.24 (Anti-Takeover Statutes) <omitted> shall be true and correct in all material respects <omitted> , (ii) the representations and warranties of the Company contained in <omitted> Section 4.05(c), the first sentence of Section 4.06(b) and Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects (other than de minimis inaccuracies) contained therein
<omitted>
with only such exceptions
in
65
the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_132 | ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY
<omitted> the Company hereby represents and warrants to Parent, Holding and Merger Sub that, (x) in respect of the entirety of Article V (other than in respect of Section 5.1(a), Section 5.3, Section 5.20, Section 5.21 and Section 5.22), as of the Original Signing Date, and (y) in respect of Section 5.1(a), Section 5.3, Section 5.20, Section 5.21and Section 5.22, as of the date hereof (in the case of both (x) and (y), except for any such representation and warranty (or part thereof) that expressly speaks as of a particular date or period of time, in which case as of such particular date or period of time): <omitted>
8.2 Conditions to Obligations of Parent, Holding and Merger Sub. The obligations of Parent, Holding and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Effective Time, of the following conditions (which may be waived, in whole or in part, to the extent permitted by Law, by Parent): 81
(a) Representations and Warranties. Each of the representations and warranties set forth in: Section 5.1(a) (Organization, Good Standing and Qualification), Section 5.2(a) and Section 5.2(b)(iv) (Capital Structure) (except for de minimis inaccuracies; provided, however, that no inaccuracies in excess of an aggregate 6,000 Shares shall be deemed to be de minimis), Section 5.3 (Corporate Authority and Approval), Section 5.20 (Takeover Statutes; No Rights Plan), Section 5.21 (Brokers and Finders) and Section 5.22 (Opinion of Financial Advisor) shall be true and correct in all respects as of the Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly, including by virtue of the lead in to Article V, speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time). (Pages 87-88) | Capitalization-Other, Authority, Approval, Organization, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_120 | 7.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction or waiver (where permissible pursuant to applicable law) prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent: (a) Representations and Warranties. (i) Other than the representations and warranties listed in clauses (ii), (iii) and (iv) in this Section 7.2(a), the representations and warranties of the Company set forth in Article III will be true and correct (without giving effect to any materiality, Company Material Adverse Effect or similar qualifications set forth therein) as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date), except for such failures to be true and correct that would not have a Company Material Adverse Effect; (Page 94)
7.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction or waiver (where permissible pursuant to applicable law) prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent: (a) Representations and Warranties. (i) Other than the representations and warranties listed in clauses (ii), (iii) and (iv) in this Section 7.2(a), the representations and warranties of the Company set forth in Article III will be true and correct <omitted> except for such failures to be true and correct that would not have a Company Material Adverse Effect; (Page 94)
3.7 Company Capitalization. <omitted> 7.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction or waiver (where permissible pursuant to applicable law) prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent: <omitted> (iv) the representations and warranties set forth in Section 3.7(a) <omitted> will be true and correct as of the Closing Date (in each case (A) without giving effect to any Company Material Adverse Effect or other materiality qualifications; and (B) except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date), except where the failure to be so true and correct would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, that is more than $50,000,000. (Page 95)
3.7 Company Capitalization. <omitted> 7.2 Conditions to the Obligations of Parent and Merger Sub. <omitted> (iv) will be true and correct <omitted> except where the failure to be so true and correct would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, that is more than $50,000,000. (Page 95)
3.1 Organization; Good Standing. <omitted>
3.2 Corporate Power; Enforceability. <omitted>
3.3 Company Board Approval; Fairness Opinion; Anti-Takeover Laws. <omitted>
3.4 Requisite Stockholder Approval. <omitted>
3.5 Non-Contravention. <omitted>
3.7 Company Capitalization. <omitted>
3.8 Subsidiaries. <omitted>
3.12 Absence of Certain Changes. <omitted>
3.25 Brokers. <omitted>
7.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction or waiver (where permissible pursuant to applicable law) prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent: (a) Representations and Warranties. <omitted> (ii) the representations and warranties set forth in Section 3.1 (other than the penultimate sentence thereof), Section 3.2, Section 3.3, Section 3.4, clause (a) of Section 3.5, Section 3.7(b) (other than the first sentence thereof), Section 3.7(d), Section 3.8 and Section 3.25 that (A) are not qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all material respects as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all material respects as of such earlier date); and (B) that are qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all respects (without disregarding such Company Material Adverse Effect or other materiality qualifications) as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such earlier date); (iii) the representations and warranties set forth in Section 3.12(a)(ii) will be true and correct in all respects of the Closing Date; and (iv) the representations and warranties set forth in Section 3.7(a), the first sentence of Section 3.7(b) and Section 3.7(c) will be true and correct as of the Closing Date (in each case (A) without giving effect to any Company Material Adverse Effect or other materiality qualifications; and (B) except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date), except where the failure to be so true and correct would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, that is more than $50,000,000. (Page 95)
3.1 Organization; Good Standing. <omitted>
3.2 Corporate Power; Enforceability. <omitted>
3.3 Company Board Approval; Fairness Opinion; Anti-Takeover Laws. <omitted>
3.4 Requisite Stockholder Approval. <omitted>
3.5 Non-Contravention. <omitted>
3.7 Company Capitalization. <omitted>
3.8 Subsidiaries. <omitted>
3.12 Absence of Certain Changes. <omitted>
3.25 Brokers. <omitted>
7.2 Conditions to the Obligations of Parent and Merger Sub. <omitted> (ii) the representations and warranties set forth in Section 3.1 (other than the penultimate sentence thereof), Section 3.2, Section 3.3, Section 3.4, clause (a) of Section 3.5, Section 3.7(b) (other than the first sentence thereof), Section 3.7(d), Section 3.8 and Section 3.25 that (A) are not qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all material respects <omitted>; and (B) that are qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all respects <omitted> ; (iii) the representations and warranties set forth in Section 3.12(a)(ii) will be true and correct in all respects <omitted> ; and (iv) the representations and warranties set forth in <omitted> the first sentence of Section 3.7(b) and Section 3.7(c) will be true and correct <omitted> except where the failure to be so true and correct would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, that is more than $50,000,000. (Page 95) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_28 | Conditions to the Offer Notwithstanding any other term of the Offer or this Agreement to the contrary, Merger Sub will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject to the provisions of this Agreement) may terminate the Offer and not accept for payment any tendered Shares, at any scheduled Expiration Date (as it may have been extended pursuant to Section 2.1 of this Agreement) if <omitted> (ii) any of the additional conditions set forth below are not satisfied or waived in writing by Parent at theExpiration Time: <omitted>
(d) Representations and Warranties. Each of the representations and warranties set forth in: <omitted> (iv) this Agreement (other than those set forth in the foregoing clauses (i), (ii) and (iii) of this clause (d) of Annex I), without giving effect to any “materiality” or “Material Adverse Effect” qualifiers or qualifiers of similar import set forth therein, shall be true and correct as of the consummation of the Offer as though made as of the consummation of the Offer (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time), except, in the case of this clause (iv), for any failure of any such representations and warranties to be so true and correct that would not, individually or in the aggregate, result in or reasonably be expected to result in a Material Adverse Effect. (Page 107)
Conditions to the Offer <omitted> Each of the representations and warranties set forth in: <omitted> (iv) this Agreement (other than those set forth in the foregoing clauses (i), (ii) and (iii) of this clause (d) of Annex I) <omitted> shall be true and correct <omitted> except, in the case of this clause (iv), for any failure of any such representations and warranties to be so true and correct that would not, individually or in the aggregate, result in or reasonably be expected to result in a Material Adverse Effect. (Page 107)
Conditions to the Offer
Notwithstanding any other term of the Offer or this Agreement to the contrary, Merger Sub will not be required to accept for payment or,
subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Merger Sub’s
obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered
pursuant to the Offer, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject to the
provisions of this Agreement) may terminate the Offer and not accept for payment any tendered Shares, at any scheduled Expiration Date (as it may have been extended pursuant to Section 2.1 of this Agreement) if <omitted> (ii) any of the additional conditions set forth below are not satisfied or waived in writing by Parent at the
Expiration Time: <omitted>
(d) Representations and Warranties.
Each of the representations and warranties set forth in <omitted>
(ii) Sections 5.2(a), <omitted> (Capital Structure) shall be true and correct as of the Capitalization Date, except for inaccuracies that are de minimis in the aggregate (Page 106)
Conditions to the Offer <omitted> (d) Representations and Warranties. Each of the representations and warranties set forth in: <omitted> (ii) Sections 5.2(a), <omitted> (Capital Structure) shall be true and correct as of the Capitalization Date, except for inaccuracies that are de minimis in the aggregate (Page 106)
5.2. Capital Structure.
<omitted>
(h) <omitted>Each of the outstanding shares of capital stock or other securities of each of the
Company’s Subsidiaries is duly
authorized, validly issued, fully paid and
non-assessable and, except for directors’ qualifying shares and any
shares of capital stock or other securities of any
Non-Wholly Owned Subsidiaries owned by such Persons contemplated by Section 5.2(f)(iii)(B), owned by the Company or by a Wholly Owned Subsidiary of the Company, free and clear of any Encumbrance (other than any Permitted Encumbrance contemplated by clauses (e) and (f) of the definition thereof).
<omitted>
5.3. Corporate Authority; Approval and Fairness.
<omitted>
This Agreement has been duly executed and delivered by the
Company and, assuming due execution and delivery of
this Agreement by Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Conditions to the Offer
Notwithstanding any other term of the Offer or this Agreement to the contrary, Merger Sub will not be required to accept for payment or,
subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Merger Sub’s
obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered
pursuant to the Offer, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject to the
provisions of this Agreement) may terminate the Offer and not accept for payment any tendered Shares, at any scheduled Expiration Date (as it may have been extended pursuant to Section 2.1 of this Agreement) if <omitted> (ii) any of the additional conditions set forth below are not satisfied or waived in writing by Parent at the
Expiration Time: <omitted>
(d) Representations and Warranties.
Each of the representations and warranties set forth in: (i) Section 5.1(a) (Organization, Good Standing and Qualification), Section 5.3 (Corporate Authority; Approval and Fairness), Section 5.4(b)(i) (No Violations), Section 5.10(b) (Absence of Certain Changes), Section 5.21 (Takeover Statutes) and Section 5.22 (Brokers and Finders) shall be true and correct in all respects as of the consummation of the Offer as though made as of the consummation of the Offer (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct in all respects as of such particular date or period of time); (ii) Sections <omitted> 5.2(b) and 5.2(h) (Capital Structure) shall be true and correct as of the Capitalization Date, except for inaccuracies that are de minimis in the aggregate; (iii) Section 5.7 (Disclosure Controls and Procedures and Internal Control Over Financial Reporting) and Section 5.8 (Financial Statements; No Undisclosed Liabilities; Off-Balance Sheet <omitted>
Arrangements) shall be true and correct in all respects as of the consummation of the Offer as though made as of the consummation of the Offer (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct in all respects as of such particular date or period of time), except, in the case of this clause (iii) for any failure of any such representations and warranties to be so true and correct that would not, individually or in the aggregate, result in or reasonably be expected to result in a material adverse effect on the Company (without giving effect to any “materiality” or “Material Adverse Effect” qualifiers or qualifiers of similar import set forth therein) (Pages 106-107)
5.2. Capital Structure.
<omitted>
(h) <omitted>Each of the outstanding shares of capital stock or other securities of each of the
Company’s Subsidiaries is <omitted> except for directors’ qualifying shares and any shares of capital stock or other securities of any
Non-Wholly Owned Subsidiaries owned by such Persons contemplated by Section 5.2(f)(iii)(B), owned by the Company or by a Wholly Owned Subsidiary of the Company,
<omitted>
5.3. Corporate Authority; Approval and Fairness.
<omitted>
This Agreement <omitted> constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, .
<omitted>
Conditions to the Offer <omitted>
(d) Representations and Warranties. Each of the representations and warranties set forth in: (i) Section 5.1(a) (Organization, Good Standing and Qualification), Section 5.3 (Corporate Authority; Approval and Fairness), Section 5.4(b)(i) (No Violations), Section 5.10(b) (Absence of Certain Changes), Section 5.21 (Takeover Statutes) and Section 5.22 (Brokers and Finders) shall be true and correct in all respects <omitted> (ii) Sections <omitted> 5.2(b) and 5.2(h) (Capital Structure) shall be true and correct <omitted> except for inaccuracies that are de minimis in the aggregate; (iii) Section 5.7 (Disclosure Controls and Procedures and Internal Control Over Financial Reporting) and Section 5.8 (Financial Statements; No Undisclosed Liabilities; Off-Balance Sheet <omitted>
Arrangements) shall be true and correct in all respects <omitted> except, in the case of this clause (iii) for any failure of any such representations and warranties to be so true and correct that would not, individually or in the aggregate, result in or reasonably be expected to result in a material adverse effect on the Company (without giving effect to any “materiality” or “Material Adverse Effect” qualifiers or qualifiers of similar import set forth therein) (Pages 106-107) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_24 | 7.2 Additional Conditions to Obligations of Labrador and Merger Sub. The obligations of Labrador and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Labrador, in whole or in part, to the extent permitted by applicable Law: (a) Representations and Warranties of Golden . <omitted> (iii)all other representations and warranties of Golden set forth in Article IV (a)which are qualified by a “Golden Material Adverse Effect” shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time) and (b)which are not qualified by a “Golden Material Adverse Effect” shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time), except, in the case of this clause (iii)(b), where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Golden Material Adverse Effect. (Page 44)
7.2 Additional Conditions to Obligations of Labrador and Merger Sub. <omitted> (iii)all other representations and warranties of Golden set forth in Article IV <omitted> shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date <omitted> except, in the case of this clause (iii)(b), where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Golden Material Adverse Effect. (Page 44)
7.2 Additional Conditions to Obligations of Labrador and Merger Sub. The obligations of Labrador and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Labrador, in whole or in part, to the extent permitted by applicable Law: (a) Representations and Warranties of Golden . (i)The representations and warranties of Golden set forth in the first sentence of <omitted> Section 4.2(a)(Capital Structure) <omitted> shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except, with respect to Section 4.2(a) <omitted> for any De Minimis Inaccuracies) (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time) (Page 44)
7.2 Additional Conditions to Obligations of Labrador and Merger Sub. <omitted> The representations and warranties of Golden set forth in <omitted> Section 4.2(a)(Capital Structure), <omitted> shall be true and correct <omitted> (except, with respect to Section 4.2(a) <omitted> any De Minimis Inaccuracies) (Page 44)
4.1 Organization, Standing and Power. <omitted> Each of Golden and its Subsidiaries is a corporation, partnership or limited liability company duly organized, as the case may be, validly existing and in good standing under the Laws of its jurisdiction of incorporation or organization, <omitted> 4.3 Authority; No Violations; Consents and Approvals. <omitted> The execution and delivery of this Agreement by Golden and the consummation by Golden of the Transactions have been duly authorized by all necessary corporate action on the part of Golden, subject, only with respect to consummation of the Merger, to the Golden Stockholder Approval. This Agreement has been duly executed and delivered by Golden and, assuming the due and valid execution of this Agreement by Labrador and Merger Sub, constitutes a valid and binding obligation of Golden enforceable against Golden in accordance with its terms <omitted> 4.6 Absence of Certain Changes or Events. <omitted> (a)Since December 31, 2020, there has not been any Golden Material Adverse Effect <omitted> 7.2 Additional Conditions to Obligations of Labrador and Merger Sub. The obligations of Labrador and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Labrador, in whole or in part, to the extent permitted by applicable Law: (a) Representations and Warranties of Golden . (i)The representations and warranties of Golden set forth in the first sentence of Section 4.1 (Organization, Standing and Power), <omitted> Section 4.3(a) (Authority), and Section 4.6(a) (Absence of Certain Changes or Events) shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date <omitted> (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time), (ii)all other representations and warranties of Golden set forth in Section 4.2(b)(Capital Structure) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct in all material respects only as of such date or period of time), (Page 44)
4.1 Organization, Standing and Power. <omitted> Each of Golden and its Subsidiaries is a corporation, partnership or limited liability company duly organized, as the case may be, validly existing and in good standing under the Laws of its jurisdiction of incorporation or organization, <omitted>
4.3 Authority; No Violations; Consents and Approvals. <omitted> The execution and delivery of this Agreement by Golden and the consummation by Golden of the Transactions have been duly authorized by all necessary corporate action on the part of Golden, subject, only with respect to consummation of the Merger, to the Golden Stockholder Approval. This Agreement has been duly executed and delivered by Golden and, assuming the due and valid execution of this Agreement by Labrador and Merger Sub, constitutes a valid and binding obligation of Golden enforceable against Golden in accordance with its terms <omitted> 4.6 Absence of Certain Changes or Events. <omitted> (a)Since December 31, 2020, there has not been any Golden Material Adverse Effect <omitted>
7.2 Additional Conditions to Obligations of Labrador and Merger Sub. <omitted> (i)The representations and warranties of Golden set forth in the first sentence of Section 4.1 (Organization, Standing and Power), <omitted> Section 4.3(a) (Authority), and Section 4.6(a) (Absence of Certain Changes or Events) <omitted> shall be true and correct <omitted> (ii)all other representations and warranties of Golden set forth in Section 4.2(b)(Capital Structure) <omitted> shall be true and correct in all material respects (Page 44) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_58 | Section 6.3 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted> (iii) The other representations and warranties of the Company set forth in Article III shall be true and correct as of the date of this Agreement and as of the Closing Date as though made as of the Closing (except to the extent that any such representation and warranty speaks as of a particular date, in which case as of such earlier date), except for inaccuracies of representations and warranties the circumstances giving rise to which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, all materiality, “Material Adverse Effect” and similar qualifiers set forth in such representations and warranties shall be disregarded). (Page 66)
Section 6.3 Conditions to the Obligations of Parent and Merger Sub. <omitted> (iii) The other representations and warranties of the Company set forth in Article III shall be true and correct <omitted> except for inaccuracies of representations and warranties the circumstances giving rise to which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (Page 66)
Section 3.2 Capital Stock.
<omitted>
Section 6.3 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: (a) Representations and Warranties.
(i) The representations and warranties of the Company set forth in Section 3.2(a), Section 3.2(b) and Section 3.8(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made as of the Closing (except to the extent that any such representation and warranty speaks as of a particular date, in which case as of such earlier date) except for de minimis inaccuracies with respect to Section 3.2(a) and Section 3.2(b); (Page 65)
Section 3.2 Capital Stock. <omitted> Section 6.3 Conditions to the Obligations of Parent and Merger Sub <omitted> (i) The representations and warranties of the Company set forth in Section 3.2(a), Section 3.2(b) and Section 3.8(b) shall be true and correct in all respects <omitted> except for de minimis inaccuracies with respect to Section 3.2(a) and Section 3.2(b) (Page 65)
Section 3.2 Capital Stock. <omitted> (d) Each of the outstanding shares of capital stock of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and all such shares are owned by the Company or another wholly-owned Subsidiary of the Company as set forth on Section 3.2(d)(i) of the Company Disclosure Letter and except as set forth on Section 3.2(d)(ii) of the Company Disclosure Letter are owned free and clear of all security interests, liens, claims, pledges, agreements, limitations on voting rights, charges or other encumbrances (collectively, “Liens”) of any nature whatsoever, except for liens under applicable securities Laws. <omitted>
Section 3.3 Authority. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted> As of the date of this Agreement, the Company Board unanimously adopted resolutions <omitted> (b) approving and declaring advisable this Agreement and the transactions contemplated hereby, including the Merger <omitted>
Section 3.8 Absence of Certain Changes or Events.<omitted> since <omitted> (b) the 2019 Audit Date through the date of this Agreement, there has not been any event, change, occurrence or effect that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (c) the date of the Company Balance Sheet through the date of this Agreement, the Company has not taken any action that would have required the prior written consent of Parent under Section 5.1(b)(i), (iii), (iv), (v), (vii), (viii), (ix), (x), (xi), or (xii) or if such action had been taken after the date of this Agreement and prior to the Closing. <omitted>
Section 3.21 Brokers. <omitted>
Section 3.22 Opinion of Financial Advisor. <omitted>
Section 6.3 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 3.2(a), Section 3.2(b) and Section 3.8(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made as of the Closing (except to the extent that any such representation and warranty speaks as of a particular date, in which case as of such earlier date) except for de minimis inaccuracies with respect to Section 3.2(a) and Section 3.2(b); (ii) The representations and warranties of the Company set forth in Section 3.2(c), Section 3.2(d), Section 3.2(e), Section 3.3(a), Section 3.8(c), Section 3.21 and Section 3.22 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made as of the Closing (except to the extent that any such representation and warranty speaks as of a particular date, in which case as of such earlier date); (Page 65)
Section 3.2 Capital Stock. <omitted>
Section 3.3 Authority. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted> As of the date of this Agreement, the Company Board unanimously adopted resolutions <omitted> (b) approving and declaring advisable this Agreement and the transactions contemplated hereby, including the Merger <omitted>
Section 3.8 Absence of Certain Changes or Events.<omitted> since <omitted> (c) the date of the Company Balance Sheet through the date of this Agreement, the Company has not taken any action that would have required the prior written consent of Parent under Section 5.1(b)(i), (iii), (iv), (v), (vii), (viii), (ix), (x), (xi), or (xii) or if such action had been taken after the date of this Agreement and prior to the Closing. <omitted>
Section 3.21 Brokers. <omitted>
Section 3.22 Opinion of Financial Advisor. <omitted>
Section 6.3 Conditions to the Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in <omitted> Section 3.2(b) and Section 3.8(b) shall be true and correct in all respects <omitted> except for de minimis inaccuracies with respect to <omitted> Section 3.2(b); (ii) The representations and warranties of the Company set forth in Section 3.2(c), Section 3.2(d), Section 3.2(e), Section 3.3(a), Section 3.8(c), Section 3.21 and Section 3.22 shall be true and correct in all material respects (Page 65) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_94 | Section 2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
Section 2.3 Capitalization. <omitted>
Section 2.4 Authority; Binding Nature of Agreement. <omitted> Assuming the accuracy of Parent’s and Acquisition Subs’ representations and warranties set forth in Section 3.17 hereof, on or prior to the date hereof, the Company Board has unanimously: (a) duly and validly authorized and approved the execution, the delivery and, subject to the receipt of the Required Company Stockholder Vote, the performance of this Agreement and the consummation of the First Merger by the Company; (b) determined that the First Merger is fair to and in the best interests of the Company and its stockholders; (c) approved and declared advisable this Agreement and the consummation of the transactions contemplated by this Agreement, including the First Merger; and (d) resolved that (i) this Agreement be submitted to a vote of the Company’s stockholders and, <omitted>
Section 2.5 Vote Required. <omitted>
Section 2.6 Non-Contravention; Consents.(a) The execution and delivery of this Agreement by the Company and <omitted> the consummation by the Company of the Mergers will not: (i) cause a violation of any of the provisions of the Organizational Documents of the Company or any Company Subsidiary; <omitted>
Section 2.25 Brokers. <omitted>
Section 5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Mergers to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. (i) The representations and warranties of the Company contained in Section 2.3(c) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date of this Agreement and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall only be required to be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (ii) the representations and warranties of the Company contained in the first sentence of Section 2.1(a), Section 2.3 (other than Section 2.3(c)), Section 2.4, Section 2.5, Section 2.6(a)(i), and Section 2.25 shall have been true and accurate in all material respects at and as of the date of this Agreement and shall be true and accurate in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall only be required to be true and accurate in all material respects as of such particular date or period of time); provided, however, that, in the case of this clause (ii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; and (iii) the representations and warranties of the Company set forth in this Agreement (other than those representations and warranties referred to in the foregoing clauses (i) and (ii)) shall have been true and accurate in all respects at and as of the date of this Agreement and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall only be required to be so true and accurate as of such particular date or period of time), except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in, a Company Material Adverse Effect; provided, however, that, in the case of this clause (iii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; provided that the reference to Company Material Adverse Effect in Section 2.8(a) shall be given effect. (Pages 99-100) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_13 | 7.2 Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions:
(a) (A) each representation or warranty of the Company set forth in this Agreement, other than Sections 3.3, 3.4(a), 3.4(b), and 3.19, shall be true and correct (without giving effect to any qualification as to “materiality” or “Material Adverse Effect” set forth therein) as of the Closing Date as though made on or as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specified period of time, which need only be true and correct as of such date or with respect to such period), except, in each case, where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect that is continuing, (Pages 39-40)
7.2 Conditions to Obligation of Parent and Merger Sub. <omitted>
(A) each representation or warranty of the Company set forth in this Agreement <omitted> shall be true and correct <omitted> , except, in each case, where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect that is continuing, (Pages 39-40)
3.3 Capitalization. <omitted>
7.2 Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions: <omitted>
(a) <omitted> (B) each representation or warranty of the Company set forth in Section 3.3 shall be true and correct in all material respects as of the date of such representation and warranty (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000), and (Page 40)
3.3 Capitalization. <omitted>
7.2 Conditions to Obligation of Parent and Merger Sub. <omitted> (B) each representation or warranty of the Company set forth in Section 3.3 shall be true and correct in all material respects <omitted> (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000) (Page 40)
3.3 Capitalization <omitted> (e) <omitted> Each outstanding share of capital stock of each Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable and was not issued in violation of any preemptive or similar rights, purchase option, call or right of first refusal or similar rights created by the organizational documents of such Company Subsidiary or any Contract to which such Company Subsidiary is a party and are not subject to any pre-emptive or similar rights, and each such share is owned by the Company or another Company Subsidiary free and clear of all Liens (other than Permitted Liens) or Contracts or other limitations or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or equity interest) other than restrictions imposed by applicable securities laws. <omitted>
3.4 Authority Relative to this Agreement. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors’ rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. <omitted>
(b) The Company Board, at a meeting duly called and held on February 26, 2021, at which all of the directors of the Company were present <omitted> (iii) approved this Agreement and the Transactions (including the Merger) upon the terms and conditions set forth in this Agreement <omitted>
3.19 Brokers and Expenses. <omitted>
7.2 Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions: <omitted> (a) <omitted>
(B) each representation or warranty of the Company set forth in Section 3.3 shall be true and correct in all material respects as of the date of such representation and warranty (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000), and (C) any representation or warranty of the Company set forth in Sections 3.4(a), 3.4(b), and 3.19 shall be true and correct in all respects as of the Closing Date as though made on or as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specified period of time, which need only be true and correct as of such date or with respect to such period). (Page 40)
3.3 Capitalization <omitted> (e) <omitted> Each outstanding share of capital stock of each Company Subsidiary is duly authorized <omitted> , and each such share is owned by the Company <omitted>
3.4 Authority Relative to this Agreement. (a) <omitted> This Agreement <omitted> constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted> (b) The Company Board <omitted> (iii) approved this Agreement <omitted>
3.19 Brokers and Expenses. <omitted>
7.2 Conditions to Obligation of Parent and Merger Sub. <omitted> (B) each representation or warranty of the Company set forth in Section 3.3 shall be true and correct in all material respects <omitted> (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000), and (C) any representation or warranty of the Company set forth in Sections 3.4(a), 3.4(b), and 3.19 shall be true and correct in all respects (Page 40) | Capitalization-Other, Authority, Approval, Enforceability, Subsidiaries, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_92 | Section 8.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by applicable Law, by Parent): <omitted> (iv) except for the representation and warranties described in the foregoing clauses (i) through (iii), contained in Article III shall be true and correct in all respects (disregarding all materiality and “Company Material Adverse Effect” qualifiers contained therein), in each case at and as of the Closing as if made at and as of the Closing (except any such representations and warranties that by their terms speak specifically as of another specified time, in which case as of such time), except where the failure of the representations and warranties contained in this clause (iv) to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 81)
Section 8.2 Conditions to Obligations of Parent and Merger Sub. <omitted> except for the representation and warranties described in the foregoing clauses (i) through (iii), contained in Article III shall be true and correct in all respects <omitted> in each case <omitted> except where the failure of the representations and warranties contained in this clause (iv) to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 81)
Section 8.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by applicable Law, by Parent): (a) Representations and Warranties. The representations and warranties of the Company (i) contained in Section 3.5(a) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing (except representations and warranties that by their terms speak specifically as of another specified time, in which case as of such time) other than in each case for de minimis inaccuracies, (Page 81)
Section 8.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by applicable Law, by Parent): (a) Representations and Warranties. The representations and warranties of the Company (i) contained in Section 3.5(a) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing (except representations and warranties that by their terms speak specifically as of another specified time, in which case as of such time) other than in each case for de minimis inaccuracies, (Page 81)
Section 3.1 Corporate Existence and Power.(a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Iowa. <omitted>
Section 3.2 Corporate Authorization. <omitted> Each of this Agreement, the Support Agreements and the Spin-Off Agreements, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted>
Section 3.10 Absence of Certain Changes. <omitted>
Section 3.24 Finders’ Fee, etc. <omitted>
Section 3.26 Antitakeover Statutes. <omitted>
Section 8.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by applicable Law, by Parent): (a) Representations and Warranties. The representations and warranties of the Company <omitted> (ii) contained in Section 3.10(a) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing, (iii) contained in Section 3.1(a), Section 3.2, Section 3.24 and Section 3.26 shall be true and correct in all material respects at and as of the Closing as if made at and as of the Closing (Page 81)
Section 3.1 Corporate Existence and Power.(a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Iowa. <omitted>
Section 3.2 Corporate Authorization. <omitted> Each of this Agreement, the Support Agreements and the Spin-Off Agreements, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted>
Section 3.10 Absence of Certain Changes. <omitted>
Section 3.24 Finders’ Fee, etc. <omitted>
Section 3.26 Antitakeover Statutes. <omitted>
Section 8.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by applicable Law, by Parent): (a) Representations and Warranties. The representations and warranties of the Company <omitted> (ii) contained in Section 3.10(a) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing, (iii) contained in Section 3.1(a), Section 3.2, Section 3.24 and Section 3.26 shall be true and correct in all material respects at and as of the Closing as if made at and as of the Closing (Page 81) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_134 | Conditions of the Offer Notwithstanding any other term of the Offer or this Agreement and in addition to (and not in limitation of) Merger Subsidiary’s right to extend and amend the Offer pursuant to the provisions of the Agreement, Parent shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the 1934 Act (relating to Parent’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in the Offer, unless, immediately prior to the then applicable Offer Expiration Time: <omitted> (iii) each of the other representations and warranties of the Company set forth in the Merger Agreement shall be true and correct in all respects as of the date of this Agreement and as of the consummation of the Offer, as if made at such time, except to the extent such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), other than, in the case of clause (iii), for such failures to be true and correct that, individually or in the aggregate, would not have a Material Adverse Effect (it being understood that for this purpose all references to the term “Material Adverse Effect” and other qualifications based on the word “material,” set forth in any such representations and warranties shall be disregarded). Solely for purposes of clause (i)(x) of this paragraph (d), if one or more inaccuracies in the sections referred to in clause (i) of this paragraph (d) would cause the Aggregate Consideration to increase by $25,000,000 or more, such inaccuracy or inaccuracies will not be considered de minimis; (Page 45)
Conditions of the Offer <omitted> (iii) each of the other representations and warranties of the Company set forth in the Merger Agreement shall be true and correct in all respects <omitted> other than, in the case of clause (iii), for such failures to be true and correct that, individually or in the aggregate, would not have a Material Adverse Effect (Page 45)
Conditions of the Offer Notwithstanding any other term of the Offer or this Agreement and in addition to (and not in limitation of) Merger Subsidiary’s right to extend and amend the Offer pursuant to the provisions of the Agreement, Parent shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the 1934 Act (relating to Parent’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in the Offer, unless, immediately prior to the then applicable Offer Expiration Time: <omitted> (i) (x) the representations and warranties of the Company set forth in Section 4.05(a) (Capitalization) (other than for inaccuracies that are de minimis relative to the fully-diluted equity capitalization of the Company) and (y) Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date of the Merger Agreement and as of the consummation of the Offer, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date) (Page 45)
Conditions of the Offer <omitted> (i) (x) the representations and warranties of the Company set forth in Section 4.05(a) (Capitalization) (other than for inaccuracies that are de minimis relative to the fully-diluted equity capitalization of the Company) (Page 45)
Section 4.01.
Corporate Existence and Power.
(b)
The Company is a corporation duly incorporated and validly existing under the laws of the State of Delaware and has all corporate powers and
all governmental licenses, authorizations, Permits, consents and approvals required to carry on its business as currently conducted, except for those powers,
licenses, authorizations, Permits, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
<omitted>
Section 4.02.
Corporate Authorization.
Assuming the representations and warranties in
Section 5.09
are true and correct and the transactions
contemplated hereby are consummated and the Merger
becomes effective in accordance with Section 251(h) of the DGCL, the Company has all requisite corporate
power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Merger in accordance with Section 251(h)
of the DGCL. Assuming the representations and warranties in Section 5.09 are true and correct and the transactions contemplated hereby are consummated and the Merger becomes effective in accordance with Section 251(h) of the DGCL, the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby (subject to the filing and recordation of appropriate merger documents as required by the DGCL).
<omitted>
This Agreement has been duly and validly executed and delivered
by the
Company and, assuming the due authorization, execution and delivery by Parent and Merger Subsidiary, constitutes a legal, valid
and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency (including all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting creditors’ rights generally and subject to the effect of general principles of equity
(regardless of whether
considered in a proceeding at law or in equity) (the “
Bankruptcy and Equity Exception
”).
<omitted>
Conditions of the Offer
Notwithstanding any other term of the Offer or this Agreement and in addition to (and not in limitation of) Merger Subsidiary’s right to extend and amend the Offer pursuant to the provisions of the Agreement, Parent shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the 1934 Act (relating to Parent’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in the Offer, unless, immediately prior to the then applicable Offer Expiration Time:
<omitted>
(d) (i) (x) the representations and warranties of the Company set forth in <omitted> (y) Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date of the Merger Agreement and as of the consummation of the Offer, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date) (ii) the representations and warranties of the Company set forth in Section 4.01 (Corporate Existence), Section 4.02 (Corporate Authorization), Section 4.05 (other than Section 4.05(a)) (Capitalization) and Section 4.23 (Finders’ Fees) shall be true and correct in all material respects as of the date of the Merger Agreement and as of the consummation of the Offer, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date) and (Page 45)
Section 4.01.
Corporate Existence and Power.
(b)
The Company is a corporation duly incorporated and validly existing under the laws of the State of Delaware
<omitted>
Section 4.02.
Corporate Authorization.
<omitted> the Company has all requisite corporate
power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Merger in accordance with Section 251(h)
of the DGCL. Assuming the representations and warranties in Section 5.09 are true and correct and the transactions contemplated hereby are consummated and the Merger becomes effective in accordance with Section 251(h) of the DGCL, the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby (subject to the filing and recordation of appropriate merger documents as required by the DGCL).
<omitted>
This Agreement <omitted> constitutes a legal, valid
and binding obligation of the
Company, enforceable against the Company
<omitted>
Conditions of the Offer <omitted>
(d) (i) (x) the representations and warranties of the Company set forth in <omitted> (y) Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects <omitted> (ii) the representations and warranties of the Company set forth in Section 4.01 (Corporate Existence), Section 4.02 (Corporate Authorization), Section 4.05 (other than Section 4.05(a)) (Capitalization) and Section 4.23 (Finders’ Fees) shall be true and correct in all material respects (Page 45) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_20 | Section 4.3 Authority; No Violations; Approvals. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due and valid execution of this Agreement by Parent, Buyer and Parent Manager, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms,
<omitted>
The Company Board, at a meeting duly called and held, (A) determined that this Agreement and the Transactions, including the Merger, are in the best interests of the Company, (B) approved this Agreement and declared that the Transactions, including the Merger, are advisable <omitted>
Section 8.2 Additional Conditions to Obligations of Parent, Buyer and Parent Manager. The obligations of Parent, Buyer and Parent Manager to consummate the Merger are subject to the satisfaction at or prior to the Closing of each of the following conditions, any or all of which may be waived exclusively by Parent, Buyer and Parent Manager, in whole or in part, to the extent permitted by applicable Law:
(a) Representations and Warranties of the Company. (i) The representations and warranties of the Company set forth in Section 4.3(a) (Authority), Section 4.6(a) (Absence of Certain Changes and Events) and Section 4.19 (Brokers) shall be true and correct in all respects as of the date hereof and as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date shall have been true and correct only as of such date), (ii) the representations and warranties of the Company set forth in Section 4.2(a) (Capital Structure) shall be true and correct in all but de minimis respects as of the specific date set forth therein, (iii) representations and warranties of the Company set forth in Section 4.1(a) (Organization; Standing and Power), Section 4.1(b) (Subsidiaries), Section 4.1(c) (Other Interests) and Section 4.20 (State Takeover Statute) shall be true and correct in all material respects as of the date hereof and as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date shall have been true and correct only as of such date), and (iv) all other representations and warranties of the Company set forth in Article IV shall be true and correct as of the date hereof and as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date shall have been true and correct only as of such date), except where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”) does not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Pages 75-76) | Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_121 | Section 4.4 Authority. <omitted> This Agreement has been duly executed and delivered by Company, and assuming due and validauthorization, execution and delivery by Parent and Merger Sub, constitutes a legally valid and binding obligation of Company enforceable againstCompany in accordance with its terms <omitted> (b)The Company Board at a duly held meeting, has unanimously <omitted> approved, adopted and declared advisable thisAgreement and the Merger, <omitted>
Section 8.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and to consummate the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent, at or prior to the Effective Time, of the following additional conditions: (a) Representations and Warranties. (i) The representations and warranties set forth in Sections 4.1(a) and (b) (Organization and Qualification; Subsidiaries), Section 4.3 (Capital Structure) (except Section 4.3(a)) , Section 4.4 (Authority), Section 4.20 (Opinion of Financial Advisor), Section 4.21 (Approval Required), Section 4.22 (Brokers), and Section 4.23 (Investment Company Act) shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Time, as though made as of the Effective Time, (ii) the representations and warranties set forth in Section 4.3(a) (Capital Structure) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Effective Time, as though made as of the Effective Time, and (iii) each of the other representations and warranties of Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Effective Time, as though made as of the Effective Time, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of clause (iii) where the failure of such representations or warranties to be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 58) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_104 | SECTION 7.02.
Conditions to Obligations of Parent and Merger Sub.
The obligations of Parent and Merger Sub to effect the
Merger are further subject to the satisfaction (or waiver by
Parent and Merger Sub) on or prior to the Closing Date of the following conditions:
<omitted>
(a) Representations and Warranties of the Company.
The representations and warranties of the Company
<omitted>
(iv) set forth in Article III other than those specified in the foregoing clauses (i), (ii) and (iii) shall be true and correct (for purposes of determining the satisfaction of this condition, without regard to any “materiality”, “Company Material Adverse Effect” or similar qualifications and exceptions contained therein) as of the Closing Date as though made at and as of such date (except to the extent such representation and warranty expressly relates to a specified date (in which case at and as of such specified date)), other than for such failures to be true and correct that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 77)
SECTION 7.02.
Conditions to Obligations of Parent and Merger Sub.
<omitted>
The representations and warranties of the Company
<omitted>
(iv) set forth in Article III other than those specified in the foregoing clauses (i), (ii) and (iii) shall be true and correct <omitted> other than for such failures to be true and correct that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 77)
SECTION 7.02.
Conditions to Obligations of Parent and Merger Sub.
The obligations of Parent and Merger Sub to effect the
Merger are further subject to the satisfaction (or waiver by
Parent and Merger Sub) on or prior to the Closing Date of the following conditions:
<omitted>
(a) Representations and Warranties of the Company.
The representations and warranties of the Company
<omitted>
(ii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct, as of the Closing Date as though made at and as of such date, except for any de minimis inaccuracies; (Page 77)
SECTION 7.02.
Conditions to Obligations of Parent and Merger Sub.
<omitted>
The representations and warranties of the Company
<omitted>
(ii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct, as of the Closing Date as though made at and as of such date, except for any de minimis inaccuracies; (Page 77)
SECTION 3.04. Authority; Execution and Delivery; Enforceability.
<omitted>
(b)
The Company Board at a meeting duly called and held, duly and
unanimously adopted resolutions (i) determining that this Agreement and the Transactions, including the Merger, are in the best interests of the Company and its stockholders, (ii) approving and declaring advisable this Agreement and the Transactions, including the Merger, in each case on the terms and subject to the conditions set forth in this Agreement
<omitted>
(c)
No state takeover statute, “business combination”, “control share acquisition”, “fair price”, “moratorium”, “interested
stockholder”,
“affiliate transaction” or similar Law, and no analogous provision in
the Company Charter or the Company Bylaws, applies to
the Company with respect to this Agreement, the Merger or any other Transaction.
<omitted>
There is no stockholder rights plan, “poison pill” antitakeover plan or
similar device in effect to which the Company is subject, party or
otherwise bound.
<omitted>
SECTION 7.02. Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (or waiver by Parent and Merger Sub) on or prior to the Closing Date of the following conditions: <omitted>
(a) Representations and Warranties of the Company. The representations and warranties of the Company (i) set forth in Section 3.07(a) (Absence of Certain Changes or Events) shall be true and correct as of the Closing Date as though made at and as of such date; (ii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct, as of the Closing Date as though made at and as of such date, except for any de minimis inaccuracies; (iii) set forth in Section 3.01(a) (Organization, Standing and Power), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.05(a)(i)(x) (No Conflicts), and Section 3.21 (Brokers and Other Advisors) and Section 3.22 (Opinions of Financial Advisors) shall be true and correct in all material respects as of the Closing Date as though made at and as of such date (except to the extent such representation and warranty expressly relates to a specified date (in which case at and as of such specified date)) (Pages 76-77)
SECTION 3.04. Authority; Execution and Delivery; Enforceability.
<omitted>
(b)
The Company Board at a meeting duly called and held, duly and
unanimously adopted resolutions <omitted> (ii) approving and declaring advisable this Agreement and the Transactions, including the Merger, in each case on the terms and subject to the conditions set forth in this Agreement
<omitted>
(c)
No state takeover statute, “business combination”, “control share acquisition”, “fair price”, “moratorium”, “interested
stockholder”,
“affiliate transaction” or similar Law, and no analogous provision in
the Company Charter or the Company Bylaws, applies to
the Company with respect to this Agreement, the Merger or any other Transaction.
<omitted>
There is no stockholder rights plan, “poison pill” antitakeover plan or
similar device in effect to which the Company is subject, party or
otherwise bound.
<omitted>
SECTION 7.02. Conditions to Obligations of Parent and Merger Sub.
<omitted>
The representations and warranties of the Company (i) set forth in Section 3.07(a) (Absence of Certain Changes or Events) shall be true and correct <omitted> (ii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct, <omitted> except for any de minimis inaccuracies; (iii) set forth in Section 3.01(a) (Organization, Standing and Power), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.05(a)(i)(x) (No Conflicts), and Section 3.21 (Brokers and Other Advisors) and Section 3.22 (Opinions of Financial Advisors) shall be true and correct in all material respects (Pages 76-77) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_84 | (i) The representations and warranties set forth in Sections 4.1a) and (b) (Organization and Qualification; Subsidiaries), Section 4.3 (Capital Structure) (other than Section 4.3(a) (Capital Structure)), Section 4.4 (Authority), Section 4.8(a) (Absence of Certain Changes or Events), Section 4.19 (Opinion of Financial Advisor), Section 4.20 (Brokers) and Section 4.23 (Vote Required) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (ii) the representations and warranties set forth in Section 4.3(a) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (iii) each of the other representations and warranties of the Company Parties contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (iv) the representations and warranties set forth in Section 6.1 (Organization and Qualification), Section 6.2 (Authority) and the first sentence of Section 6.4 (Ownership of Company Partnership Units) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (v) the representations and warranties set forth in the second sentence of Section 6.4 (Ownership of Company Partnership Units) shall be true and correct in all respects as of the date of this Agreement and as of the Closing and (vi) each of the other representations and warranties of Mercury contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of clause (iii) and clause (vi) where the failure of such representations or warranties to be true and correct (without giving effect to any materiality or Material Adverse Effect qualifications set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company Parties or Mercury, as applicable. (Page 142)
(i) The representations and warranties set forth in Sections 4.1a) and (b) (Organization and Qualification; Subsidiaries), Section 4.3 (Capital Structure) (other than Section 4.3(a) (Capital Structure)), Section 4.4 (Authority), Section 4.8(a) (Absence of Certain Changes or Events), Section 4.19 (Opinion of Financial Advisor), Section 4.20 (Brokers) and Section 4.23 (Vote Required) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (ii) the representations and warranties set forth in Section 4.3(a) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (iii) each of the other representations and warranties of the Company Parties contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (iv) the representations and warranties set forth in Section 6.1 (Organization and Qualification), Section 6.2 (Authority) and the first sentence of Section 6.4 (Ownership of Company Partnership Units) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (v) the representations and warranties set forth in the second sentence of Section 6.4 (Ownership of Company Partnership Units) shall be true and correct in all respects as of the date of this Agreement and as of the Closing and (vi) each of the other representations and warranties of Mercury contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of clause (iii) and clause (vi) where the failure of such representations or warranties to be true and correct (without giving effect to any materiality or Material Adverse Effect qualifications set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company Parties or Mercury, as applicable. (Page 142)
(a) Representations and Warranties. (i) The representations and warranties set forth in Sections 4.1a) and (b) (Organization and Qualification; Subsidiaries), Section 4.3 (Capital Structure) (other than Section 4.3(a) (Capital Structure)), Section 4.4 (Authority), Section 4.8(a) (Absence of Certain Changes or Events), Section 4.19 (Opinion of Financial Advisor), Section 4.20 (Brokers) and Section 4.23 (Vote Required) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (ii) the representations and warranties set forth in Section 4.3(a) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (iii) each of the other representations and warranties of the Company Parties contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (iv) the representations and warranties set forth in Section 6.1 (Organization and Qualification), Section 6.2 (Authority) and the first sentence of Section 6.4 (Ownership of Company Partnership Units) shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, (v) the representations and warranties set forth in the second sentence of Section 6.4 (Ownership of Company Partnership Units) shall be true and correct in all respects as of the date of this Agreement and as of the Closing and (vi) each of the other representations and warranties of Mercury contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Conditions Satisfaction Date, as though made as of the Closing Conditions Satisfaction Date, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of clause (iii) and clause (vi) where the failure of such representations or warranties to be true and correct (without giving effect to any materiality or Material Adverse Effect qualifications set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company Parties or Mercury, as applicable. (Page 142) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_47 | 3.1 Representations and Warranties of the Company. <omitted> (a) Organization, Good Standing and Qualification. <omitted>
(b) Capital Structure. <omitted>
(c) Corporate Authority; Approval and Fairness. <omitted> This Agreement has been duly executed and delivered by the Company and, assumingthis Agreement constitutes the valid and binding agreement of Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy,insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors rights and to general equity principles regardless of whether enforcement is considered in a proceeding in equityor at law (the “Bankruptcy and Equity Exception”).12 (ii) The Company Board has (A) made the Company Recommendation, (B)directed that this Agreement be submitted to theholders of Shares for their approval at a stockholders’ meeting duly called and held for such purpose and (C)received theopinion of its financial advisor to the effect that the consideration to be received by the holders of the Shares in the Mergeris fair from a financial point of view, as of the date of such opinion, to such holders. It is agreed and understood that such opinions are for the benefit of the Company Board and may not be relied on by Parent or Merger Sub. <omitted>
(r) Brokers Fees. <omitted>
5.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i)The representations and warranties of the Company set forth in Sections 3.1(b)(i), 3.1(b)(ii)and 3.1(b)(iii)shall be true and correct in all respects (except for de minimis inaccuracies) as of the Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date except for de minimis inaccuracies); (ii)each of the representations and warranties of the Company set forth in the first sentence of Section 3.1(a), Section 3.1(c) and Section 3.1(r)shall be true and correct in all material respects as of the as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), and (iii)each of the other representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects (without regard to any materiality or Company Material Adverse Change qualifications contained therein) as of the Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); provided, however, that notwithstanding anything herein to the contrary, the condition set forth in this Section 5.2(a)(iii) shall b e deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct unless the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Change. (Page 29) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_116 | Section 4.1 Organization, General Authority and Standing. <omitted>
Section 4.2 Capital Structure. <omitted>
Section 4.5 No Conflicts; Consents. <omitted> Section 4.8 Absence of Certain Changes or Events. (a) <omitted> Section 4.19 Brokers and Other Advisors. <omitted> Section 4.22 Takeover Laws. Section 4.22 Takeover Laws. As of the date of this Agreement, no “fair price,” “moratorium,” “control share acquisition,” “business combination” or other form of anti-takeover statute or regulation or any anti-takeover provision in the certificate of incorporation or bylaws of the Company is, and the Company has no rights plan, “poison pill” or similar agreement that is, applicable to this Agreement, the Merger or the other transactions contemplated hereby and the Company Board has taken all necessary actions so that the restrictions on business combinations set forth in Section 203 of the DGCL and any other similar applicable “anti-takeover” law will not be applicable to the Merger. <omitted>
Section 7.3 Additional Parent Conditions to Closing. The obligation of Parent and Merger Sub to consummate the Merger is further conditioned upon satisfaction (or waiver by Parent) at or prior to the Closing of each of the following: (a) The representations and warranties of the Company contained in (i) this Agreement (other than those set forth in Section 4.1, Section 4.2(a), the first sentence of Section 4.2(c), Section 4.5(a)(i), Section 4.8(a), Section 4.19 and Section 4.22) are true and correct as of the date of this Agreement and as of the Closing Date, as if made as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in any such representation or warranty) would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, (ii) Section 4.2(a) and the first sentence of Section 4.2(c) are true and correct (without giving effect to an Company Material Adverse Effect or other materiality qualifications) as of the date of this Agreement and as of the Closing Date, as if made as of such time (except to the extent expressly made as of an earlier date, in which case as of such date) except where the failure to be so true and correct in all respects would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, that is more than $6,000,000, (iii) Section 4.8(a) are true and correct as of the date of this Agreement and as of the Closing Date, as if made as of such time and (iv) Section 4.1, Section 4.5(a)(i), Section 4.19 and Section 4.22, that (A) are not qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and (B) that are qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all respects (without disregarding such Company Material Adverse Effect or other materiality qualifications) as of the Closing Date as if made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date). (Page 70) | Capitalization-Other, Authority, Organization, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_90 | 5.2 Additional Conditions Precedent to Parent’s Obligations.The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions:(a) Accuracy of Representations. <omitted> (iv) the representations and warranties of the Company set forth in this Agreement (other than those representations and warranties referred to in the foregoing clauses “(i)” through “(iii)”) shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and accurate as of such particular date or period of time), except as would not, individually or in the aggregate, constitute or reasonably be expected to constitute, a Company Material Adverse Effect (Pages 65-66)
5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (iv) the representations and warranties of the Company set forth in this Agreement <omitted> except as would not, individually or in the aggregate, constitute or reasonably be expected to constitute, a Company Material Adverse Effect; (Pages 65-66)
2.3 Capitalization. <omitted> 5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions: (a) Accuracy of Representations. <omitted> (i) The representations and warranties of the Company contained in Section 2.3 shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (Page 65)
2.3 Capitalization. <omitted> 5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (i) The representations and warranties of the Company contained in Section 2.3 shall have been true and accurate, other than de minimis inaccuracies (Page 65)
2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
2.3 Capitalization. <omitted>
2.5 Absence of Certain Changes. <omitted>
2.17 Authority; Binding Nature of Agreement. <omitted>
On or prior to the date hereof, the Company Board has unanimously: (a) duly and validly authorized and approved the execution, delivery and performance of this Agreement and the consummation of the Merger by the Company; (b) determined that the Merger is fair to and in the best interests of the Company and its stockholders; (c) approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including the Merger;
<omitted>
This Agreement has been duly executed and delivered on behalf of the Company and, assuming the due authorization, execution and delivery of this Agreement on behalf of Parent and Acquisition Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors’ rights generally; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. <omitted>
2.18 Vote Required. <omitted>
2.19 Non-Contravention; Consents. <omitted>
2.20 Takeover Statutes. <omitted>
2.22 Opinion of Financial Advisor. <omitted>
2.23 Brokers. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations.The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions:(a) Accuracy of Representations. (i) The representations and warranties of the Company contained in Section 2.3 shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (ii) the representations and warranties of the Company contained in Section 2.1(a) (first sentence only), Section 2.17, Section 2.18, Section 2.19(a)(i), Section 2.20, Section 2.22 and Section 2.23 shall have been true and accurate in all material respects at and as of the date hereof and shall be true and accurate in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and accurate as of such particular date or period of time); provided, however, that, for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; (iii) the representations and warranties of the Company contained in Section 2.5(a) shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate at and as of the Closing Date as if made at and as of such time; (Page 65)
2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
2.3 Capitalization. <omitted>
2.5 Absence of Certain Changes. <omitted>
2.17 Authority; Binding Nature of Agreement. <omitted>
On or prior to the date hereof, the Company Board has unanimously: <omitted> (c) approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including the Merger;
<omitted>
This Agreement <omitted> constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted>
2.18 Vote Required. <omitted>
2.19 Non-Contravention; Consents. <omitted>
2.20 Takeover Statutes. <omitted>
2.22 Opinion of Financial Advisor. <omitted>
2.23 Brokers. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (i) The representations and warranties of the Company contained in Section 2.3 shall have been true and accurate, other than de minimis inaccuracies, <omitted> (ii) the representations and warranties of the Company contained in Section 2.1(a) (first sentence only), Section 2.17, Section 2.18, Section 2.19(a)(i), Section 2.20, Section 2.22 and Section 2.23 shall have been true and accurate in all material respects <omitted> (iii) the representations and warranties of the Company contained in Section 2.5(a) shall have been true and accurate in all respects (Page 65) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_2 | Section 4.3 Authority; Binding Nature of Agreement. <omitted> The Company Board has (a) determined that this Agreement and the Transactions, including the Offer and the Merger, are fair to, and in the best interest of, the Company and its stockholders, (b) approved the execution, delivery and performance by the Company of this Agreement and the consummation of the Transactions, (c) resolved that the Merger shall be effected under Section 251(h) of the DGCL and (d) resolved to recommend that the stockholders of the Company tender their shares to Purchaser pursuant to the Offer, which resolutions, as of the Agreement Date, have not been subsequently withdrawn or modified in a manner adverse to Parent. <omitted> CONDITIONS TO THE OFFER
<omitted> The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions set forth in clauses (a) through (h) below. <omitted> (b) (i) the representations and warranties of the Company set forth in Section 4.4(a) and the first sentence of Section 4.4(c) (Capitalization, Etc.) of the Agreement shall have been accurate in all respects other than de minimis inaccuracies as of the date of this Agreement and at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time); (ii) the representations and warranties of the Company set forth in Section 4.1 (Due Organization; Subsidiaries, Etc.) , Section 4.3 (Authority; Binding Nature of Agreement) , Section 4.4 (Capitalization, Etc.) (other than Section 4.4(a) and the first sentence of Section 4.4(c)), and Section 4.26 (Brokers and Other Advisors) of the Agreement shall have been accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all material respects as of the date of this Agreement and at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time); (iii) the representations and warranties of the Company set forth in Section 4.7(a) (Absence of Changes) and Section 4.24 (Merger Approval) shall have been accurate in all respects;
I-1
(iv) all of the other representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses (b)(i), (b)(ii) or (b)(iii) above) shall have been accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all respects as of the date of this Agreement and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time), except where any failure of any representation or warranty to be so accurate has not had, and would not reasonably be expected to have, a Material Adverse Effect; (Page 50) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_139 | Section 4.1. Qualification, Organization, Subsidiaries, etc. <omitted>
(c) All of the issued and outstanding shares of capital stock of, or other equity interests in, each Company Subsidiary have been validly issued and are fully paid and nonassessable and are wholly owned, directly or indirectly, by the Company free and clear of all Liens, other than Permitted Liens <omitted> .
Section 4.2. Capitalization. <omitted>
(d) There are no voting trusts or other agreements, commitments or understandings to which the Company or any Company Subsidiary (or to the Company’s Knowledge as of the date hereof, a Company Stockholder) is a party with respect to the voting of the capital stock or other equity interests of the Company. <omitted> .
Section 4.3. Corporate Authority.
(a) <omitted> On or prior to the date hereof, the Company Board of Directors has unanimously <omitted> (iii) approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Merger and the other Transactions upon the terms and subject to the conditions contained herein, <omitted>
(b) This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted>
Section 4.8. Absence of Certain Changes or Events. <omitted>
Section 4.22. Opinion of Financial Advisor. <omitted>
Section 4.23. State Takeover Statutes; Anti-Takeover Laws. <omitted> The Company has no rights plan, “poison-pill” or other comparable agreement in effect. <omitted>
Section 4.26. Finders and Brokers <omitted>
Section 8.2. Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent or Merger Sub:
(a) Representations and Warranties. (i) The representations and warranties of the Company set forth in the first and final sentences of Section 4.1(a), the first sentence of Section 4.1(c), Section 4.2(c), Section 4.2(d) (other than the second sentence thereof), Section 4.3, Section 4.22, Section 4.23 and Section 4.26 shall be true and correct in all material respects as of the date hereof and shall be true and correct in all material respects as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); (ii) the representations and warranties of the Company set forth in Section 4.2(a) and Section 4.2(b), shall be true and correct other than for de minimis inaccuracies as of the date hereof and shall be true and correct other than for de minimis inaccuracies as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); (iii) the representations and warranties of the Company set forth in Section 4.8(a) shall be true and correct in all respects as of the date hereof and shall be true and correct in all respects as of the Closing as though made on and as of the Closing; and (iv) the other representations and warranties of the Company set forth in this Agreement (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) shall be true and correct as of the date hereof and shall be true and correct as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date), except, with respect to this clause (iv), where any failures of any such representations and warranties to be true and correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 73) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_99 | 4.1 Organization and Qualification; Subsidiaries. <omitted>
4.2 Capitalization. <omitted>
4.3 Authority. <omitted> The Company Board, at a meeting duly called and held, has by unanimous vote (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the Company and its stockholders, and declared it advisable, for the Company to enter into this Agreement, (ii) approved and declared advisable the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Offer and the Merger and the other transactions contemplated by this Agreement uponthe terms and subject to the conditions contained herein, <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery by Parent and Merger Sub, constitutes a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditors’ rights, and to general equitable principles, including specific performance and injunctive and other forms of equitable relief (the “Enforceability Exceptions”). <omitted>
4.22 Opinion of Financial Advisor. <omitted>
4.24 Brokers. <omitted>
4.25 State Takeover Statutes. <omitted>
Conditions to the Offer <omitted>
(2) (i) the representations and warranties of the Company set forth in Section 4.2(a) and Section 4.2(b) shall not be true and correct in all respects as of the Capitalization Date, except for de minimis inaccuracies, (ii) the representations and warranties of the Company set forth in the second and third sentences of Section 4.1(a) (without giving effect to any “Company Material Adverse Effect” qualifier set forth therein) and Section 4.2 (other than Section 4.2(a) and Section 4.2(b)) shall not be true and correct in all material respects on the date hereof and at and as of immediately prior to the Expiration Time, as though made at and as of such time (except to the extent expressly made as of an earlier date, in which case, at and as of such earlier date), (iii) the representations and warranties of the Company set forth in the first sentence of Section 4.1(a) (without giving effect to any “Company Material Adverse Effect” qualifier set forth therein), the representations and warranties of the Company set forth in Section 4.3, Section 4.22, Section 4.24 and Section 4.25 shall not be true and correct in all respects on the date hereof and at and as of immediately prior to the Expiration Time, as though made at and as of such time (except to the extent expressly made as of an earlier date, in which case, at and as of such earlier date), and
(iv) any other representation and warranty of the Company contained in Article 4 of the Agreement (without giving effect to any qualification as to “materiality” or “Company Material Adverse Effect” qualifiers set forth therein) shall not be true and correct in all respects at and as of immediately prior to the Expiration Time as though made at and as of such time (except to the extent expressly made as of an earlier date, in which case, at and as of such earlier date), except where the failure to be so true and correct would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Pages 108-109) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_126 | Section 7.2. Conditions to Obligations of Parent. The obligations of Parent, Merger Sub I and Merger Sub II to consummate the Mergers shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent, Merger Sub I and Merger Sub II, as the case may be, to the extent permitted by applicable Law: <omitted> (D) the other representations and warranties of the Company set forth in this Agreement (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) shall be true and correct as of the date hereof and shall be true and correct as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date), except, with respect to this clause (D), where any failures of any such representations and warranties to be true and correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 82)
Section 7.2. Conditions to Obligations of Parent. <omitted> (D) the other representations and warranties of the Company set forth in this Agreement <omitted> shall be true and correct as of the date hereof and shall be true and correct as of the Closing <omitted> , except, with respect to this clause (D), where any failures of any such representations and warranties to be true and correct <omitted> have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 82)
Section 7.2. Conditions to Obligations of Parent. The obligations of Parent, Merger Sub I and Merger Sub II to consummate the Mergers shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent, Merger Sub I and Merger Sub II, as the case may be, to the extent permitted by applicable Law: (a) Representations and Warranties. <omitted> (B) the representations and warranties of the Company set forth in Section 3.2(a) (Capitalization) <omitted> shall be true and correct other than for de minimis inaccuracies as of the date hereof and shall be true and correct other than for de minimis inaccuracies as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date) (Page 82)
Section 7.2. Conditions to Obligations of Parent. <omitted> (B) the representations and warranties of the Company set forth in Section 3.2(a) (Capitalization) <omitted> shall be true and correct other than for de minimis inaccuracies <omitted> and shall be true and correct other than for de minimis inaccuracies (Page 82)
Section 3.3. Corporate Authority. <omitted> (c) On or prior to the date hereof, the Company Board of Directors has unanimously <omitted> (iii) approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Mergers and the other Transactions upon the terms and subject to the conditions contained herein <omitted> (e) This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent, Merger Sub I and Merger Sub II, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted>
Section 3.23. State Takeover Statutes; Anti-Takeover Laws. <omitted> The Company has no rights plan, “poison-pill” or other comparable agreement designed to have the effect of delaying, deferring or discouraging any Person from acquiring control of the Company. <omitted>
Section 7.2. Conditions to Obligations of Parent. The obligations of Parent, Merger Sub I and Merger Sub II to consummate the Mergers shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent, Merger Sub I and Merger Sub II, as the case may be, to the extent permitted by applicable Law: (a) Representations and Warranties. (A) The representations and warranties of the Company set forth in Section 3.1(a) (other than the last sentence thereof) (Qualification, Organization, Subsidiaries, etc.), the first sentence of Section 3.1(b) (Qualification, Organization, Subsidiaries, etc.), Section 3.3 (Corporate Authority), Section 3.22 (Opinion of Financial Advisor), Section 3.23 (State Takeover Statutes; Anti-Takeover Laws) and Section 3.25 (Finders and Brokers) (x) that are qualified by materiality or Company Material Adverse Effect shall be true and correct in all respects as of the date hereof and shall be true and correct in all respects as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date) and (y) that are <omitted> not qualified by materiality or Company Material Adverse Effect shall be true and correct in all material respects as of the date hereof and shall be true and correct in all material respects as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); (B) the representations and warranties of the Company set forth in <omitted> Section 3.2(c) (Capitalization), Section 3.2(d) (Capitalization) and Section 3.2(e) (Capitalization) shall be true and correct other than for de minimis inaccuracies as of the date hereof and shall be true and correct other than for de minimis inaccuracies as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); (C) the representations and warranties of the Company set forth in Section 3.8(a) (Absence of Certain Changes or Events) shall be true and correct in all respects as of the date hereof and shall be true and correct in all respects as of the Closing as though made as of the Closing (Pages 81-82)
Section 3.3. Corporate Authority. <omitted> (c) On or prior to the date hereof, the Company Board of Directors has unanimously <omitted> (iii) approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Mergers and the other Transactions upon the terms and subject to the conditions contained herein <omitted> (e) This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent, Merger Sub I and Merger Sub II, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted>
Section 3.23. State Takeover Statutes; Anti-Takeover Laws. <omitted> The Company has no rights plan, “poison-pill” or other comparable agreement designed to have the effect of delaying, deferring or discouraging any Person from acquiring control of the Company. <omitted>
Section 7.2. Conditions to Obligations of Parent. <omitted> (A) The representations and warranties of the Company set forth in Section 3.1(a) (other than the last sentence thereof) (Qualification, Organization, Subsidiaries, etc.), the first sentence of Section 3.1(b) (Qualification, Organization, Subsidiaries, etc.), Section 3.3 (Corporate Authority), Section 3.22 (Opinion of Financial Advisor), Section 3.23 (State Takeover Statutes; Anti-Takeover Laws) and Section 3.25 (Finders and Brokers) (x) that are qualified by materiality or Company Material Adverse Effect shall be true and correct in all respects <omitted> and (y) that are <omitted> not qualified by materiality or Company Material Adverse Effect shall be true and correct in all material respects as of the date hereof and shall be true and correct in all material respects as of the Closing as though made as of the Closing <omitted> ; (B) the representations and warranties of the Company set forth in <omitted> Section 3.2(c) (Capitalization), Section 3.2(d) (Capitalization) and Section 3.2(e) (Capitalization) shall be true and correct other than for de minimis inaccuracies <omitted> ; (C) the representations and warranties of the Company set forth in Section 3.8(a) (Absence of Certain Changes or Events) shall be true and correct in all respects (Pages 81-82) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_61 | 3.1 Organization, Standing and Power. <omitted>
3.2 Capitalization. <omitted>
3.4 Authority; No Conflict; Required Filings and Consents. <omitted>
(a) <omitted> The Company Board, at a meeting duly called and held, by the unanimous vote of all directors, duly adopted resolutions (i) determining and declaring that it is in the best interests of the Company and the stockholders of the Company that the Company enter into this Agreement and consummate the Merger and the 11
other transactions contemplated by this Agreement on the terms and subject to the conditions set forth herein, <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by Parent, US Holdco and Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). <omitted>
3.7 Absence of Certain Changes or Events. Since the date of the Company Balance Sheet until the date of this Agreement, there has not been a Company Material Adverse Effect, nor has there been any effect, development, circumstance or change that would reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect. <omitted>
3.21 Opinion of Financial Advisor. <omitted>
3.22 Takeover Statutes. <omitted>
3.23 Brokers. <omitted>
7.3 Conditions to the Obligations of Parent, US Holdco and Merger Sub. The obligation of Parent, US Holdco and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent (on behalf of Parent, US Holdco and Merger Sub), on or prior to the Closing Date of the following conditions:
(a) (i) the representations and warranties of the Company contained in the first, second and third sentences of Section 3.1, Section 3.2, Section 3.4(a), Section 3.21, Section 3.22 and Section 3.23 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date; (ii) the representations and warranties of the Company contained in the first sentence Section 3.7 shall be true and correct in all respects as of the date of this Agreement; (iii) the representations and warranties of the Company contained in Section 3.2 shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (other than any such representation or warranty that is made as of a specific date, which need only be true and correct as of such date), except where the failure to be true and correct is, in the aggregate, de minimis in nature and amount; and (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (other than any such representation or warranty that is made as of a specific date, which need only be true and correct as of such date), except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 67) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_91 | 3.1 Organization <omitted>
3.2 Corporate Power; Enforceability. <omitted>
3.3 Company Board Approval; Fairness Opinion; Anti-Takeover Laws. <omitted>
3.4 Requisite Stockholder Approval. <omitted>
3.7 Company Capitalization. <omitted>
3.12 Absence of Certain Changes. (a) No Company Material Adverse Effect. <omitted> Since the date of the Audited Company Balance Sheet through the date of this Agreement, there has not occurred a Company Material Adverse Effect. <omitted>
3.25 Broker's Fee. <omitted>
7.2 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction or waiver (where permissible pursuant to applicable Law) at or prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent:
(a) Representations and Warranties. (i) Other than the representations and warranties listed in Section 7.2(a)(ii) and Section 7.2(a)(iii), the representations and warranties of the Company set forth in this Agreement will be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date), except for such failures (considered collectively) to be true and correct that would not have a Company Material Adverse Effect. -89-
(ii) The representations and warranties set forth in Section 3.1, Section 3.2, Section 3.3(c), Section 3.4, Section 3.7 (other than the representations and warranties set forth in the second sentence of Section 3.7(a) and the second sentence of Section 3.7(b)), the second sentence of Section 3.12(a) and Section 3.25 that (A) are not qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all material respects as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all material respects as of such earlier date); and (B) that are qualified by Company Material Adverse Effect or other materiality qualifications will be true and correct in all respects (without disregarding such Company Material Adverse Effect or other materiality qualifications) as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such earlier date).
(iii) The representations and warranties set forth in the second sentence of Section 3.7(a) and the second sentence of Section 3.7(b) will be true and correct as of the Capitalization Date except where the failure to be so true and correct in all respects would not reasonably be expected to result in the requirement of Parent to pay pursuant to Section 2.7(a)(iii), Section 2.8(a) and Section 2.8(b) additional merger consideration in excess of $32,000,000 that would have been payable pursuant to Section 2.7(a)(iii), Section 2.8(a) and Section 2.8(b) had the representations and warranties set forth in the second sentence of Section 3.7(a) and the second sentence of Section 3.7(b) been true and correct in all respects as of the Capitalization Date. (Pages 93-94) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_85 | SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligation of Parent and MergerSub to consummate the Merger is further subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions:
(a) Representations and Warranties. <omitted> (ii) each of the other representations and warranties of the Company set forth in Article IV shall be true and correct both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case, as of such date), except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 61)
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. <omitted>
(ii) each of the other representations and warranties of the Company set forth in Article IV shall be true and correct <omitted> except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct <omitted> has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 61)
SECTION 4.3 Capital Structure. <omitted>
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligation of Parent and MergerSub to consummate the Merger is further subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company contained in Section 4.1, Section 4.3(a), Section 4.3(b), Section 4.3(c), Section 4.4, Section 4.5(a)(i), Section 4.8(b) and Section 4.16 shall be true and correct in all material respects, in each case, both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case, as of such date), (Page 61)
SECTION 4.3 Capital Structure. <omitted>
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. <omitted>
(i) The representations and warranties of the Company contained in <omitted> Section 4.3(a), <omitted> shall be true and correct in all material respects, (Page 61)
SECTION 4.1 Organization, Standing and Power. <omitted>
SECTION 4.3 Capital Structure. <omitted>
SECTION 4.4 Authority; Execution and Delivery; Enforceability. (a) <omitted> The Company Board <omitted> has <omitted> (B) approved, adopted and declared advisable this Agreement and the Transactions <omitted>
(b) Anti-Takeover Statutes. <omitted>
SECTION 4.5 No Conflicts; Consents. <omitted>
SECTION 4.8 Absence of Certain Changes or Events. <omitted>
SECTION 4.16 Brokers’ Fees and Expenses. <omitted>
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligation of Parent and MergerSub to consummate the Merger is further subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions: (a) Representations and Warranties.
(i) The representations and warranties of the Company contained in Section 4.1, <omitted> Section 4.3(b), Section 4.3(c), Section 4.4, Section 4.5(a)(i), Section 4.8(b) and Section 4.16 shall be true and correct in all material respects, in each case, both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case, as of such date), (Page 61)
SECTION 4.1 Organization, Standing and Power. <omitted>
SECTION 4.3 Capital Structure. <omitted>
SECTION 4.4 Authority; Execution and Delivery; Enforceability. (a) <omitted> The Company Board <omitted> has <omitted> (B) approved, adopted and declared advisable this Agreement and the Transactions <omitted>
(b) Anti-Takeover Statutes. <omitted>
SECTION 4.5 No Conflicts; Consents. <omitted>
SECTION 4.8 Absence of Certain Changes or Events. <omitted>
SECTION 4.16 Brokers’ Fees and Expenses. <omitted>
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. <omitted>
(i) The representations and warranties of the Company contained in Section 4.1, <omitted> Section 4.3(b), Section 4.3(c), Section 4.4, Section 4.5(a)(i), Section 4.8(b) and Section 4.16 shall be true and correct in all material respects, (Page 61) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_66 | Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. The obligations of Parent, Merger Sub and Merger Sub II to effect the Mergers are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the First Effective Time of the following conditions:
(a) Representations and Warranties. <omitted> (iii) the other representations and warranties of the Company contained in Article III shall be true and correct, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except, in the case of this clause (iii), where the failure to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 67)
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted>
(iii) the other representations and warranties of the Company contained in Article III shall be true and correct <omitted> except, in the case of this clause (iii), where the failure to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 67)
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. The obligations of Parent, Merger Sub and Merger Sub II to effect the Mergers are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the First Effective Time of the following conditions:
(a) Representations and Warranties. <omitted> (ii) Section 3.2(a) <omitted> (Capitalization) shall be true and correct in all respects, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies (taking into account the size of the Company); (Pages 66-67)
(ii) <omitted> Section 3.2(b) (Capitalization) shall be true and correct in all respects, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies (taking into account the size of the Company); (Pages 66-67)
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted>
(ii) Section 3.2(a) <omitted> (Capitalization) shall be true and correct in all respects <omitted> except for any de minimis inaccuracies (taking into account the size of the Company); (Page 67)
Section 3.3 Authority; Noncontravention. <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, <omitted> (c) The Company Board, at a meeting duly called and held, has (i) determined that it is fair to and in the best interest of the Company and the holders of shares of Company Common Stock, and declared it advisable, that the Company enter into this Agreement and consummate the Transactions, including the Mergers; (ii) adopted this Agreement and approved the execution <omitted>
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. The obligations of Parent, Merger Sub and Merger Sub II to effect the Mergers are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the First Effective Time of the following conditions:
(a) Representations and Warranties. Each of the representations and warranties of the Company contained in: (i) Section 3.1(a) (Organization, Standing and Corporate Power), Section 3.3 (Authority; Noncontravention), Section 3.18 (Opinion of Financial Advisor), Section 3.19 (Brokers and Other Advisors) and Section 3.20 (Company Stockholder Approval) shall be true and correct in all material respects, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); (ii) <omitted> Section 3.2(b) (Capitalization) shall be true and correct in all respects, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies (taking into account the size of the Company); (Pages 66-67)
Section 3.3 Authority; Noncontravention. <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, <omitted> (c) The Company Board, at a meeting duly called and held, has (i) determined that it is fair to and in the best interest of the Company and the holders of shares of Company Common Stock, and declared it advisable, that the Company enter into this Agreement and consummate the Transactions, including the Mergers; (ii) adopted this Agreement and approved the execution <omitted>
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted> Each of the representations and warranties of the Company contained in: (i) Section 3.1(a) (Organization, Standing and Corporate Power), Section 3.3 (Authority; Noncontravention), Section 3.18 (Opinion of Financial Advisor), Section 3.19 (Brokers and Other Advisors) and Section 3.20 (Company Stockholder Approval) shall be true and correct in all material respects <omitted> ; (ii) <omitted> Section 3.2(b) (Capitalization) shall be true and correct in all respects <omitted> except for any de minimis inaccuracies (taking into account the size of the Company); (Pages 66-67) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_75 | Section 3.1 Organization. <omitted>
Section 3.3 Authorization; No Conflict.
(a) <omitted> The Company has duly executed and delivered this Agreement and, assuming due authorization, execution and delivery by Parent and Merger Subsidiary, this Agreement constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). <omitted> (b) The Company Board, by resolutions adopted at a meeting duly called and held, has unanimously (i) determined that this Agreement and the Transactions, including the Merger, are fair to and in the best interests of the Company and its stockholders, (ii) approved and declared advisable this Agreement (including the “agreement of merger,” as such term is used in Section 251 of the DGCL, contained herein) and the Transactions, <omitted>
Section 3.8 Broker’s or Finder’s Fees. <omitted>
Section 3.14 Intellectual Property; IT Assets; Data Privacy. <omitted> (g) Except as noted in Section 3.14(g) of the Company Disclosure Letter, the SLX Agreements, true and complete copies of which have been made available to Parent, remain in full force and effect and have not been amended in a manner that materially reduces the rights of any Company sublicensee. To the Knowledge of the Company, there are no facts or circumstances that would form the basis for any counterparty under the SLX Agreements to terminate any SLX Agreement with respect to Belumosudil, including, for the avoidance of doubt, with respect to a CompanySubsidiary’s assumption of the responsibilities of the Buyer (as defined in the Nano Terra Merger Agreement) in accordance with the applicable SLX Agreements with respect to Belumosudil. The execution, delivery and performance by the Company of this Agreement and the consummation of theTransactions do not and will not, under the terms of the SLX Agreements, result in (i) the loss or impairment of the Company’s right to sublicense or use any of the Company Intellectual Property Rights licensed to the Company pursuant to the SLX Agreements with respect to Belumosudil or (ii) the paymentof any additional consideration for Parent’s right to sublicense or use any such Intellectual Property. Either (A) the Buyer (as defined in the Nano TerraMerger Agreement) is, as a result of a Company Subsidiary’s compliance in all respects with its diligence obligations under
Section 7.1 of the SLXSublicense Agreement, in compliance in all respects with the diligence requirements set forth in Section 8.1 of the Nano Terra Merger Agreement withrespect to Belumosudil, including the obligation to use Commercially Reasonable Efforts (as defined in the Nano Terra Merger Agreement) to developBelumosudil; or (B) in completing the ROCKSTAR Study and/or the Clinical Trials, the Diligence Term (as such term is defined in the Nano Terra MergerAgreement) has expired with respect to Belumosudil. The Company has timely paid, or shall timely pay (to the extent due on or following the AgreementDate), to the appropriate party all material consideration due on or prior to the date that is ninety (90) days following the Closing Date under any SLXAgreement, including any and all Program Payments (as defined the Nano Terra Merger Agreement) and payments related to royalties and SublicenseRevenue (as such term is defined in the Nano Terra Merger Agreement). As of the Agreement Date, neither the Company nor any Company Subsidiaryhas received written notice with respect to Belumosudil (1) asserting a right of reversion or termination under the Nano Terra Merger Agreement or (2)asserting noncompliance with, or failure to perform, a diligence obligation or diligence requirement under any SLX Agreement. During the Interim Period,neither the Company nor any Company Subsidiary has received written notice with respect to Belumosudil (1) asserting a right of reversion or terminationunder the Nano Terra Merger Agreement or (2) asserting noncompliance with, or failure to perform, a diligence obligation or diligence requirement, in anymaterial respect, under any SLX Agreement. <omitted>
Section 6.2 Additional Parent and Merger Subsidiary Conditions. The obligations of Parent and Merger Subsidiary to consummate the Merger shall be further subject to the satisfaction (or waiver by Parent) of each of the following conditions at or prior to the Closing: <omitted>
(b) Accuracy of Representations and Warranties.
(i) The representations and warranties of the Company set forth in Section 3.2(a) and Section 3.2(b) (first sentence only) (the “Capitalization Representations”) shall be true and correct as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except for any de minimis inaccuracies (it being understood that the accuracy of those representations and warranties that address matters only as of a specified date shall be measured as set forth in this clause (b)(i) only as of such date);
53
(ii) The representations and warranties of the Company set forth in Section 3.1, Section 3.3(a), Section 3.3(b), Section 3.8 and Section 3.14(g) (the “Fundamental Representations) shall be true and correct as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date); provided, however, that for purposes of determining the accuracy of the representation and warranty of the Company set forth in the second sentence of Section 3.14(g), for purposes of this Section 6.2(b) (ii), qualifications based on Knowledge of the Company contained in such representation and warranty shall be disregarded;
(iii) The representations and warranties of the Company set forth in this Agreement (other than the Capitalization Representations and the Fundamental Representations) shall be true and correct as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except (i) for any failure to be so true and correct which has not had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and (ii) for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date, except for any failure to be so true and correct as of such date which has not had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect); provided, however, that for purposes of determining the accuracy of the representations and warranties of the Company set forth in this Agreement for purposes of this Section 6.2(b)(iii), all qualifications in the representations and warranties based on a “Company Material Adverse Effect” and all materiality qualifications and other qualifications based on the word “material” or similar phrases (but not dollar thresholds) contained in such representations and warranties shall be disregarded. (Pages 57-58) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_105 | Section 9.02
Conditions to Obligations of Parent, US Holdco and Merger Sub.
The obligations of Parent, US Holdco and Merger Sub to effect the
Merger are also subject to the satisfaction or waiver (where
permissible pursuant to applicable Law) by Parent, US Holdco and
Merger Sub on or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company (other than in the first sentence of Section 4.01(a) (solely with respect to the Company), the first sentence of Section 4.01(b) (solely with respect to the Company), Section 4.02(a) (other than the last sentence), Section 4.02(b)(i), Section 4.02(b)(ii), Section 4.03(a), Section 4.03(b)(i) (solely with respect to the Company), Section 4.03(d), Section 4.05(a) and Section 4.10) set forth in Article IV of this Agreement shall be true and correct in all respects (without giving effect to any limitation indicated by the words “Company Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) when made and on and as of the Closing Date, as if made on and as of such date (except those representations and warranties that address matters only as of a particular date, which shall be true and correct in all respects as of that date), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 101)
Section 9.02 Conditions to Obligations of Parent, US Holdco and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in Article IV of this Agreement <omitted> except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 101)
Section 4.02 Capital Structure <omitted>
Section 9.02
Conditions to Obligations of Parent, US Holdco and Merger Sub.
The obligations of Parent, US Holdco and Merger Sub to effect the
Merger are also subject to the satisfaction or waiver (where
permissible pursuant to applicable Law) by Parent, US Holdco and
Merger Sub on or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted> (ii) the representations and warranties of the Company contained in Section 4.02(a) (other than the last sentence) and Section 4.02(b)(i) shall be true and correct (other than de minimis inaccuracies) when made and on and as of the Closing Date, as if made on and as of such date (except those representations and warranties that address matters only as of a particular date, which shall be true and correct (other than de minimis inaccuracies); (Page 101)
Section 4.02 Capital Structure <omitted>
Section 9.02
Conditions to Obligations of Parent, US Holdco and Merger Sub. <omitted> (ii) the representations and warranties of the Company contained in Section 4.02(a) (other than the last sentence) and Section 4.02(b)(i) shall be true and correct (other than de minimis inaccuracies) (Page 101)
Section 4.01 Organization; Standing and Power; Charter Documents; Subsidiaries. <omitted>
Section 4.02 Capital Structure.
<omitted>
Section 4.03 Authority; Non-Contravention; Governmental Consents; Board Approval; Anti-Takeover Statutes.(a) Authority. <omitted>
This Agreement has been duly executed and delivered by the Company and, assuming due execution and delivery by Parent, US Holdco and Merger Sub, constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar Laws affecting creditors’ rights generally and by general principles of equity.
<omitted>
Section 4.05 Absence of Certain Changes or Events.
<omitted>
Section 4.10 Brokers’ and Finders’ Fees.
<omitted>
Section 9.02 Conditions to Obligations of Parent, US Holdco and Merger Sub. (a) Representations and Warranties <omitted>
(iii) the representations and warranties made in Section 4.05(a) shall be true and correct in all respects when made and on and as of the Closing Date; and
(iv) the representations and warranties contained in the first sentence of Section 4.01(a) (solely with respect to the Company), Section 4.01(b) (solely with respect to the Company), Section 4.02(b)(ii), Section 4.03(a), Section 4.03(b)(i) (solely with respect to the Company), Section 4.03(d) and Section 4.10 shall be true and correct in all material respects when made and on and as of the Closing Date, as if made on and as of such date (except those representations and warranties that address matters only as of a particular date, which shall be true and correct in all respects as of that date). (Page 101)
Section 4.01 Organization; Standing and Power; Charter Documents; Subsidiaries. <omitted>
Section 4.02 Capital Structure.
<omitted>
Section 4.03 Authority; Non-Contravention; Governmental Consents; Board Approval; Anti-Takeover Statutes.
<omitted>
This Agreement <omitted> constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms
<omitted>
Section 4.05
Absence of Certain Changes or Events.
<omitted>
Section 4.10 Brokers’ and Finders’ Fees.
<omitted>
Section 9.02 Conditions to Obligations of Parent, US Holdco and Merger Sub. <omitted> (iii) the representations and warranties made in Section 4.05(a) shall be true and correct in all respects <omitted> (iv) the representations and warranties contained in the first sentence of Section 4.01(a) (solely with respect to the Company), Section 4.01(b) (solely with respect to the Company), Section 4.02(b)(ii), Section 4.03(a), Section 4.03(b)(i) (solely with respect to the Company), Section 4.03(d) and Section 4.10 shall be true and correct in all material respects (Page 101) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_74 | Section 2.1 Corporate Organization. <omitted>
Section 2.2 Capitalization. <omitted> (d) Section 2.2(d) of the Company Disclosure Schedule lists all of the Subsidiaries of the Company and, for each such Subsidiary, its state of formation or incorporation, form of organization, each jurisdiction in which such Subsidiary is qualified or licensed to do business and each holder of (and the percentage held by each such holder of) the outstanding capital stock of, or equity interests or other securities in, each such Subsidiary. <omitted>
Section 2.3 Corporate Power and Authorization. (a) The Company has all necessary corporate power and authority to execute and deliver the Merger Agreement, to carry out its obligations under the Merger Agreement and, subject only to the approval of this Agreement by the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock (collectively, the “Company Shareholder Approval”), to consummate the Merger and the other transactions contemplated hereby. <omitted> The Merger Agreement <omitted> constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms <omitted> (b) The Company’s Board of Directors, at a meeting duly called and held or in a written consent in lieu thereof (as applicable),has adopted resolutions (i) declaring it advisable for the Company to enter into this Agreement, (ii) approving the execution, delivery andperformance of this Agreement, and the consummation of the Merger and the other transactions contemplated hereby, (iii) directing that theadoption of this Agreement be submitted to the holders of Company Common Stock for consideration and (iv) recommending, subject to theability of the Company’s Board of Directors to make a Recommendation Withdrawal pursuant to and in accordance with Section 5.2(d), thatthe Company Shareholders approve this Agreement in accordance with the TBCA (such recommendation, the “Company BoardRecommendation”).
Section 2.4 No Conflicts. <omitted>
Section 2.21 Brokers and Finders’ Fees. <omitted>
Section 6.2 Conditions to Parent and Merger Sub’s Obligation to Close. The respective obligations of Parent and Merger Sub to effect the Merger and the transactions contemplated hereby are subject to the satisfaction or, to the extent permitted by applicable Law, waiver by Parent on or prior to the Closing Date of the following conditions:
(a) Accuracy of Company Representations and Warranties. (i) The representations and warranties of the Company set forth in this Agreement (other than the representations and warranties of the Company set forth in the first sentence of Section 2.1 and set forth in Section 2.2, Section 2.3, Section 2.4(i), Section 2.4(ii) and Section 2.21) shall be true and correct in all respects (without giving effect to any materiality or Company Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except to the extent that breaches thereof, individually and in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect; (ii) each of the representations and warranties of the Company set forth in the first sentence of Section 2.1 and set forth in Section 2.2(d), Section 2.3, Section 2.4(i), Section 2.4(ii) and Section 2.21 shall be true and correct in all material respects (without giving effect to any materiality or Company Material Adverse Effect qualifier therein), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date); and (iii) each of the Company Capitalization Representations shall be true and correct in all respects (other than de minimis deviations therefrom), as of the date of this Agreement and as of the Closing Date as though made on or as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date). (Page 54) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_7 | Section 3.1. Organization and Qualification; Subsidiaries. <omitted>
Section 3.3. Capitalization. <omitted>
Section 3.4. Authority. <omitted> The execution and delivery of this Agreement and the consummation by the Company of the Merger have been duly authorized by theBoard of Directors, and this Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a Proceeding in equity or at Law) (the “Bankruptcy and Equity Exception”). <omitted>
Section 3.22. Brokers. <omitted>
Section 7.2. Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction (or waiver by Parent) at or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. Each of (i) the representations and warranties of the Company set forth in Section 3.1, Section 3.3(a), Section 3.3(b), Section 3.3(c), Section 3.3(d), Section 3.4 and Section 3.22 (except, subject to the terms of Section 6.1, in the event that the Company or any of its Subsidiaries or the Board of Directors (or a duly authorized committee thereof) engages another financial advisor in connection with the evaluation of an Acquisition Proposal) shall be true and correct in all material respects as of the Closing Date as if made at such date (except to the extent such representations and warranties speak as of a specified date, in which case they need only be true and correct in all material respects as of such specified date), which in the case of (x) Section 3.3(a), shall mean only inaccuracies that are de minimis and (y) Section 3.3(d), shall mean only inaccuracies that would not increase the aggregate consideration payable pursuant to this Agreement by more than a de minimis amount; and (ii) the other representations and warranties of the Company set forth in Article III shall be true and correct as of the Closing Date as if made at such date (except to the extent such representations and warranties speak as of a specified date, in which case they need only be true and correct as of such specified date) interpreted without giving effect to the words “materially” or “material” or to any qualifications based on such terms or based on the term “Material Adverse Effect,” except where the failure of such representations and warranties to be true and correct, in the aggregate, would not constitute or would not reasonably be expected to have a Material Adverse Effect; (Page 75) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_4 | Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions:
<omitted>
(a) <omitted>
(iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (Page 84)
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions:
<omitted>
(a) <omitted>
(iv) the representations and warranties of the Company set forth in Article 4 of this Agreement <omitted> shall have been true and correct as of the date of this Agreement and shall be true and correct <omitted> <omitted> ; provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (Page 84)
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions:
<omitted>
(a) <omitted>
(ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (Page 84)
Section 7.02 Conditions to the Obligations of Parent and Merger Sub.
<omitted>
(a) <omitted>
(ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (Page 84)
Section 4.02 Corporate Authorization.
<omitted>
(a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Laws affecting creditors’ rights generally and by general principles of specific performance, injunctive relief and other equitable remedies.
<omitted>
(b) At a meeting duly called and held, prior to the execution of this Agreement, the Company Board unanimously duly adopted resolutions (i) determining and declaring that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of the Company’s stockholders, (ii) approving the execution, delivery and performance of this Agreement, the Merger and the other transactions contemplated by this Agreement
<omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions:
<omitted>
(a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in clause (a) of Section 4.05 (Capitalization) shall be true and correct in all respects other than de minimis inaccuracies therein, (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 of this Agreement (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) on the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (Page 84)
Section 4.02 Corporate Authorization.
<omitted>
(a) <omitted> This Agreement <omitted> constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms
<omitted>
(b) At a meeting duly called and held, prior to the execution of this Agreement, the Company Board unanimously duly adopted resolutions (i) determining and declaring that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of the Company’s stockholders, (ii) approving the execution, delivery and performance of this Agreement, the Merger and the other transactions contemplated by this Agreement
<omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub.
<omitted>
(a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization) (other than clause (a) thereof) and Section 4.23 (Brokers’ Fees) shall have been true and correct in all material respects <omitted> (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects (Page 84) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_95 | 7.2
Conditions to Obligations of the Tyler Entities
.
The obligations of the Tyler Entities to consummate the Merger shall
further be subject to the
satisfaction on or prior to the
Closing Date of each of the following conditions, any and all of
which may be waived in writing in whole or in part by Tyler, to the
extent permitted by applicable Law:
(a) Representations and Warranties.
<omitted>
(iii) the other representations and warranties of NIC set forth in ARTICLE IV that are not listed in the immediately preceding subsections (i) and (ii) (without giving effect to any qualification as to materiality or NIC Material Adverse Effect contained therein) shall be true and correct as of the date hereof and shall be true and correct as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date), except, with respect to this subsection (iii), where any failures of any such representations and warranties to be true and correct (without giving effect to any qualification as to materiality or NIC Material Adverse Effect contained therein) have not had and would not reasonably be expected to have, individually or in the aggregate, a NIC Material Adverse Effect. (Page 47)
7.2
Conditions to Obligations of the Tyler Entities
.
<omitted>
(iii) the other representations and warranties of NIC set forth in ARTICLE IV that are not listed in the immediately preceding subsections (i) and (ii) <omitted> shall be true and correct <omitted> except, with respect to this subsection (iii), where any failures of any such representations and warranties to be true and correct <omitted> have not had and would not reasonably be expected to have, individually or in the aggregate, a NIC Material Adverse Effect. (Page 47)
7.2
Conditions to Obligations of the Tyler Entities
.
The obligations of the Tyler Entities to consummate the Merger shall
further be subject to the
satisfaction on or prior to the
Closing Date of each of the following conditions, any and all of
which may be waived in writing in whole or in part by Tyler, to the
extent permitted by applicable Law:
(a) Representations and Warranties.
<omitted>
(i) The representations and warranties of NIC set forth in the first sentence of Section 4.1(a) (Due Organization and Qualification), Section 4.2 (Power and Authority; Authorization), Section 4.4 (Capitalization), Section 4.22 (Brokers), Section 4.23 (Takeover Statutes ) and Section 4.26 (Opinion of Financial Advisor) (A) that are qualified by materiality or NIC Material Adverse Effect shall be true and correct in all respects as of the date hereof and shall be true and correct in all respects as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date) and (B) that are not qualified by materiality or NIC Material Adverse Effect shall be true and correct in all material respects as of the date hereof and shall be true and correct in all material respects as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); (Page 47)
7.2
Conditions to Obligations of the Tyler Entities.
<omitted>
(i) The representations and warranties of NIC set forth in <omitted> Section 4.4 (Capitalization), <omitted> shall be true and correct in all material respects (Page 47)
4.2 Power and Authority; Authorization. <omitted> the consummation by NIC of the Transactions have been duly and validly authorized by the NIC Board of Directors and no other corporate proceedings <omitted> This Agreement has been duly and validly executed and delivered by NIC and, assuming the due authorization, execution, and delivery of this Agreement by the Tyler Entities, constitutes the valid and binding agreement of NIC, enforceable against NIC in accordance with its terms
<omitted>
On or prior to the date hereof, the NIC Board of Directors has unanimously <omitted> (ii) approved the
execution and delivery by NIC of this Agreement, the
performance by NIC
of its covenants and agreements contained herein, and the consummation
of the Merger and the other Transactions
upon the terms and
subject to the conditions contained herein
<omitted>
7.2
Conditions to Obligations of the Tyler Entities
.
The obligations of the Tyler Entities to consummate the Merger shall
further be subject to the
satisfaction on or prior to the
Closing Date of each of the following conditions, any and all of
which may be waived in writing in whole or in part by Tyler, to the
extent permitted by applicable Law:
(a) Representations and Warranties.
<omitted>
(i) The representations and warranties of NIC set forth in the first sentence of Section 4.1(a) (Due Organization and Qualification), Section 4.2 (Power and Authority; Authorization), Section 4.4 (Capitalization), Section 4.22 (Brokers), Section 4.23 (Takeover Statutes ) and Section 4.26 (Opinion of Financial Advisor) (A) that are qualified by materiality or NIC Material Adverse Effect shall be true and correct in all respects as of the date hereof and shall be true and correct in all respects as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date) and (B) that are not qualified by materiality or NIC Material Adverse Effect shall be true and correct in all material respects as of the date hereof and shall be true and correct in all material respects as of the Closing as though made as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date);
(ii) the representations and warranties of NIC set forth in Section 4.21(a) (Absence of Changes; NIC Material Adverse Effect) shall be true and correct in all respects as of the date hereof and shall be true and correct in all respects as of the Closing as though made as of the Closing (Page 47)
4.2 Power and Authority; Authorization.
<omitted> the consummation by NIC of the Transactions have been duly and validly authorized by the NIC Board of Directors and no other corporate proceedings
<omitted> this Agreement by the Tyler Entities, constitutes the valid and binding agreement of NIC, enforceable against NIC in accordance with its terms
<omitted>
On or prior to the date hereof, the NIC Board of Directors has unanimously <omitted> (ii) approved the
execution and delivery by NIC of this Agreement, the
performance by NIC
of its covenants and agreements contained herein, and the consummation
of the Merger and the other Transactions
upon the terms and
subject to the conditions contained herein
<omitted>
7.2
Conditions to Obligations of the Tyler Entities
.
The obligations of the Tyler Entities to consummate the Merger shall
further be subject to the
satisfaction on or prior to the
Closing Date of each of the following conditions, any and all of
which may be waived in writing in whole or in part by Tyler, to the
extent permitted by applicable Law:
(a) Representations and Warranties.
<omitted> 7.2 Conditions to Obligations of the Tyler Entities.
<omitted>
(i) The representations and warranties of NIC set forth in the first sentence of Section 4.1(a) (Due Organization and Qualification), Section 4.2 (Power and Authority; Authorization), Section 4.4 (Capitalization), Section 4.22 (Brokers), Section 4.23 (Takeover Statutes ) and Section 4.26 (Opinion of Financial Advisor) <omitted> shall be true and correct in all material respects <omitted>
(ii) the representations and warranties of NIC set forth in Section 4.21(a) (Absence of Changes; NIC Material Adverse Effect) shall be true and correct in all respects (Page 47) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_70 | Section 4.01 Organization; Standing and Power; Charter Documents; Subsidiaries. <omitted>
Section 4.02 Capital Structure. <omitted>
Section 4.03 Authority; Non-Contravention; Governmental Consents; Board Approval; Anti-Takeover Statutes. <omitted>
(a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar Laws affecting creditors’ rights generally and by general principles of equity (the“Enforceability Exceptions”). <omitted> (d) Board Approval. <omitted> (e) Anti-Takeover Statutes. <omitted>
Section 4.05 Absence of Certain Changes or Events. Since the date of the Company Balance Sheet, except in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and except for anyCOVID-19Measures, the business of the Company and each of its Subsidiaries has been conducted in the ordinary course of business consistent with past practice and there has not been or occurred: (a) any Company Material Adverse Effect or any event, condition, change, or effect that could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; or <omitted>
Section 4.10 Brokers’ and Finders’ Fees. <omitted>
Section 4.19 Fairness Opinion. <omitted>
CONDITIONS TO THE OFFER Notwithstanding any other provision of the Agreement and Plan of Merger, dated as of August 12, 2021, by and among by and among IEC Electronics Corp., a Delaware corporation (the “Company”), Creation Technologies International Inc., a Delawarecorporation (“Parent”), CTI Acquisition Corp., a Delaware corporation and a wholly-owned Subsidiary of Parent (“Merger Sub”) and, solely for purposes of Sections 5.04, 6.05, 9.13 (to the extent related to specific performance of its obligations under Section 6.05) and 9.17, Creation Technologies Inc., a Delaware corporation (“Guarantor”), to which this Annex I is attached (the “Agreement”) or the Offer, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment or, subject toany applicable rules and regulations of the SEC including Rule 14e-1(c), pay for any Company Common Stock validly tendered and notproperly withdrawn pursuant to the Offer unless all of the following conditions have been satisfied, or waived by Parent (to the extentpermitted by applicable Law), at the scheduled Expiration Time of the Offer: <omitted>
(d) Representations and Warranties. The representations and warranties of the Company: (i) set forth in ARTICLE IV of the Agreement (other than in Section 4.01(a), Section 4.02 (with respect to Section 4.02(b)(i), only the first sentence and clause (C) of second sentence), Section 4.03(a), Section 4.03(b)(i), Section 4.03(d), Section 4.03(e), Section 4.05(a), Section 4.10 and Section 4.19) shall be true and correct in all respects (without giving effect to any limitation indicated by the words “Company Material Adverse Effect,” “in all material
respects,” “in any material respect,” “material,” or “materially”) when made and as of immediately prior to the Expiration Time, as if made at and as of such time (except those representations and warranties that address matters only as of a particular date, in which case on and as of that date), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (ii) contained in Section 4.02 (with respect to Section 4.02(b)(i), only the first sentence and clause (C) of second sentence) of the Agreement shall be true and correct (other than de minimis inaccuracies) when made and as of immediately prior to the Expiration Time, as if made at and as of such time (except those representations and warranties that address matters only as of a particular date, which shall be true and correct in all material respects as of that date); (iii) contained in Section 4.01(a), Section 4.03(a), Section 4.03(b)(i), Section 4.03(d), Section 4.03(e), Section 4.05(a), Section 4.10, and Section 4.19 of the Agreement shall be true and correct in all material respects when made and as of immediately prior to the Expiration Time, as if made at and as of such time (except those representations and warranties that address matters only as of a particular date, in which case on and as of that date); and (iv) contained in Section 4.05(a) of the Agreement shall be true and correct in all respects when made and as of immediately prior to the Expiration Time, as if made at and as of such time (except those representations and warranties that address matters only as of a particular date, in which case on and as of that date). (Pages 100-101) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_78 | Section 4.1. Qualification, Organization, Subsidiaries, etc. (a) Each of the Company and the Company Subsidiaries (i) is a corporation duly organized, validly existing and, where such concept is recognized, in good standing under the Laws of its respective jurisdiction of organization, (ii) has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted <omitted>
Section 4.2. Capitalization <omitted>
Section 4.3. Corporate Authority. <omitted> (i) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Transactions, including the Merger, <omitted> (c)This Agreement <omitted> constitutes the legal, valid and binding agreement of Parent and Merger Sub, constitutes the legal, valid and binding agreement of the Company, enforceable against the company in accordance with its terms <omitted>
Section 4.4. Governmental Consents; No Violation. <omitted>
Section 4.23. Opinion of Financial Advisor. <omitted>
Section 4.24. State Takeover Statutes. <omitted>
Section 4.25. Finders and Brokers.<omitted>
Section 8.2. Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 4.2(a), Section 4.2(b) or Section 4.2(e) shall be true and correct in all respects, other than de minimis inaccuracies, as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except for representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, in which case as of such date), (ii) the representations and warranties of the Company set forth in Section 4.1(a), Section 4.3, Section 4.4(a), Section 4.4(b)(ii), Section 4.23, Section 4.24(a) and Section 4.25 shall be true and correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) in all material respects as of the date of this Agreement and as of Closing as though made on and as of the Closing (except for representations and warranties that by their teams speak specifically as of the date of this Agreement or another date, in which case as of such date), (iii) the representations and warranties of the Company set forth in Section 4.8(a) and Section 4.24(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing as though made on and as of the Closing and (iv) each other representation and warranty of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except for representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, in which case as of such date), except, in the case of this clause (iv), where any failures of any such representations and warranties to be true and correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) would not, and would not reasonably be expected to, have individually or in the aggregate, a Company Material Adverse Effect. (Page 28) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor, No-Conflict | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_22 | 8.2. Conditions to Parent’s and Merger Sub’s Obligation to Effect the Closing. The obligations of Parent and Merger Sub to effect the Closing are also subject to the satisfaction or waiver by Parent at or prior to the Closing Date of the following conditions: (a) Representations and Warranties. Each of the representations and warranties set forth in: <omitted> (iii) Article V (other than those set forth in the foregoing clauses (i) and (ii) of this Section 8.2(a)), without giving effect to any “materiality” or “Material Adverse Effect” qualifiers or qualifiers of similar import set forth therein, shall be true and correct as of the date of this Agreement and as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time), except, in the case of this clause (iii), for any failure of any such representation and warranty to be so true and correct that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (Page 57)
8.2. Conditions to Parent’s and Merger Sub’s Obligation to Effect the Closing. <omitted> Each of the representations and warranties set forth in: <omitted> (iii) Article V (other than those set forth in the foregoing clauses (i) and (ii) of this Section 8.2(a)), <omitted> shall be true and correct <omitted> except, in the case of this clause (iii), for any failure of any such representation and warranty to be so true and correct that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (Page 57)
8.2. Conditions to Parent’s and Merger Sub’s Obligation to Effect the Closing. The obligations of Parent and Merger Sub to effect the Closing are also subject to the satisfaction or waiver by Parent at or prior to the Closing Date of the following conditions: (a) Representations and Warranties. Each of the representations and warranties set forth in: <omitted> (ii) Section 5.2(a) (Capital Structure) and Section 5.10(b) (Absence of Certain Changes) shall be true and correct in all respects (other than, with respect to the representations and warranties set forth in Section 5.2(a), any inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time); (Page 57)
8.2. Conditions to Parent’s and Merger Sub’s Obligation to Effect the Closing. <omitted> Each of the representations and warranties set forth in: <omitted> (ii) Section 5.2(a) (Capital Structure) <omitted> shall be true and correct in all respects (other than, with respect to the representations and warranties set forth in Section 5.2(a), any inaccuracies that, individually or in the aggregate, are de minimis) (Page 57)
5.3. Corporate Authority; Approval and Fairness. (a) <omitted> This Agreement has been <omitted> duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms <omitted> (b) The Company Board has, at a duly convened and held meeting: <omitted> (iii) received the opinion <omitted> of its financial advisor <omitted> to the effect that <omitted> the Per Share Merger Consideration to be paid to the holders of Shares (other than Parent and its Affiliates) is fair from a financial point of view to such holders. <omitted> 5.23. Takeover Statutes. <omitted> no anti-takeover provision in the Company’s Organizational Documents is applicable to the transactions contemplated by this Agreement <omitted>
8.2. Conditions to Parent’s and Merger Sub’s Obligation to Effect the Closing. The obligations of Parent and Merger Sub to effect the Closing are also subject to the satisfaction or waiver by Parent at or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. Each of the representations and warranties set forth in: (i) Section 5.1(a) (Organization, Good Standing and Qualification), Section 5.2(b) and (c) (Capital Structure), Section 5.3 (Corporate Authority; Approval and Fairness), Section 5.16(p) (Tax Matters), Section 5.23 (Takeover Statutes) and Section 5.24 (Brokers and Finders) that (A) is qualified by “materiality”, “Material Adverse Effect” or similar qualifiers shall be true and correct in all respects as of the date of this Agreement and as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time) and (B) is not qualified by “materiality”, “Material Adverse Effect” or similar qualifiers shall be true and correct in all material respects as of the date of this Agreement and as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time); (ii) Section 5.2(a) (Capital Structure) and Section 5.10(b) (Absence of Certain Changes) shall be true and correct in all respects (other than, with respect to the representations and warranties set forth in Section 5.2(a), any inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time); (Page 57)
5.3. Corporate Authority; Approval and Fairness. (a) <omitted> This Agreement has been <omitted> duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms <omitted> (b) The Company Board has, at a duly convened and held meeting: <omitted> (iii) received the opinion <omitted> of its financial advisor <omitted> to the effect that <omitted> the Per Share Merger Consideration to be paid to the holders of Shares (other than Parent and its Affiliates) is fair from a financial point of view to such holders. <omitted> 5.23. Takeover Statutes. <omitted> no anti-takeover provision in the Company’s Organizational Documents is applicable to the transactions contemplated by this Agreement <omitted>
8.2. Conditions to Parent’s and Merger Sub’s Obligation to Effect the Closing. <omitted> Each of the representations and warranties set forth in: (i) Section 5.1(a) (Organization, Good Standing and Qualification), Section 5.2(b) and (c) (Capital Structure), Section 5.3 (Corporate Authority; Approval and Fairness), Section 5.16(p) (Tax Matters), Section 5.23 (Takeover Statutes) and Section 5.24 (Brokers and Finders) that (A) is qualified by “materiality”, “Material Adverse Effect” or similar qualifiers shall be true and correct in all respects <omitted> and (B) is not qualified by “materiality”, “Material Adverse Effect” or similar qualifiers shall be true and correct in all material respects <omitted> (ii) <omitted> Section 5.10(b) (Absence of Certain Changes) shall be true and correct in all respects (Page 57) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor, Tax | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_67 | Section 8.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or waiver by each of Parent and Merger Sub, if permissible under Applicable Law), at or prior to the Closing, of the following further conditions: (a) Representations and Warranties. <omitted>
(ii) Each of the representations and warranties made by the Company in this Agreement other than the Company Fundamental Representations (without giving effect to any references to any “Company Material Adverse Effect” or other “materiality” qualifications) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made as and on the Closing Date, in each case, (A) except for representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date, and (B) except where the failure to be so true and correct has not had and would not reasonably be expected to have a Company Material Adverse Effect. (Page 35)
Section 8.02 Conditions to the Obligations of Parent and Merger Sub. <omitted>
Each of the representations and warranties made by the Company in this Agreement <omitted> shall be true and correct in all respects <omitted> (B) except where the failure to be so true and correct has not had and would not reasonably be expected to have a Company Material Adverse Effect. (Page 35)
Section 4.05 Capitalization; Subsidiaries. <omitted>
Section 8.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or waiver by each of Parent and Merger Sub, if permissible under Applicable Law), at or prior to the Closing, of the following further conditions: (a) Representations and Warranties.
(i) Each of the representations and warranties made by the Company in Section <omitted> 4.05(a) <omitted> (collectively, the “Company Fundamental Representations”) shall be true and correct, in all material respects, as of the date hereof and as of the Closing Date as if made as and on the Closing Date, except for representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date; and (Page 35)
Section 4.05 Capitalization; Subsidiaries. <omitted>
Section 8.02 Conditions to the Obligations of Parent and Merger Sub. <omitted>
(i) Each of the representations and warranties made by the Company in Section <omitted> 4.05(a) <omitted> shall be true and correct, in all material respects (Page 35)
Section 4.01 Corporate Existence and Power. <omitted>
Section 4.02 Corporate Authorization. <omitted> (a) <omitted>
This Agreement has been duly and validly executed and delivered by the Company, and assuming the due authorization, execution and delivery by Parent and Merger Sub of this Agreement, this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any Proceeding therefor may be brought (collectively, the “Enforceability Exceptions”).
<omitted>
(b) The Company Board has duly adopted resolutions (i) determining
that this Agreement and the Transactions are fair to, advisable and in the best interests of the Company and the Company’s
stockholders, (ii) approving this Agreement and the Transaction
<omitted>
Section 4.20 No Brokers. <omitted>
Section 8.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or waiver by each of Parent and Merger Sub, if permissible under Applicable Law), at or prior to the Closing, of the following further conditions: (a) Representations and Warranties.
(i) Each of the representations and warranties made by the Company in Sections 4.01(a), 4.02, <omitted> and 4.20 (collectively, the “Company Fundamental Representations”) shall be true and correct, in all material respects, as of the date hereof and as of the Closing Date as if made as and on the Closing Date, except for representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date; and (Page 35)
Section 4.01 Corporate Existence and Power. <omitted>
Section 4.02 Corporate Authorization. <omitted> (a) <omitted>
This Agreement <omitted> constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms,
<omitted>
(b) The Company Board has duly adopted resolutions <omitted> (ii) approving this Agreement and the Transaction
<omitted>
Section 4.20 No Brokers. <omitted>
Section 8.02 Conditions to the Obligations of Parent and Merger Sub. <omitted> (a) Representations and Warranties.
(i) Each of the representations and warranties made by the Company in Sections 4.01(a), 4.02, <omitted> and 4.20 (collectively, the “Company Fundamental Representations”) shall be true and correct, in all material respects, as of the date hereof and as of the Closing Date as if made as and on the Closing Date, except for representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date; and (Page 35) | Authority, Approval, Enforceability, Organization, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_113 | CONDITIONS TO THE OFFER
<omitted>
2. Additionally, Purchaser is not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in connection with the Offer if, immediately prior to the then applicable Expiration Date, any of the following conditions exist:
<omitted>
(b) <omitted> (ii) the representations and warranties of the Company contained in the Agreement (other than the representations and warranties set forth in Section 4.1 (Organization and Corporate Power), Section 4.2 (Authorization; Valid and Binding Agreement), Section 4.3 (Capital Stock), Section 4.20 (Brokerage), Section 4.23 (Opinion) and Section 4.24 (No Vote Required)) and that (x) are not made as of a specific date are not true and correct as of the Expiration Date, as though made on and as of the Expiration Date and (y) are made as of a specific date are not true as of such date, in each case, except, in the case of (x) or (y), where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect”) has not had a Company Material Adverse Effect (Page 81)
CONDITIONS TO THE OFFER
<omitted>
2. Additionally, Purchaser is not required to accept for payment or <omitted> to pay for any Shares validly tendered and not validly withdrawn in connection with the Offer if, immediately prior to the then applicable Expiration Date, any of the following conditions exist:
<omitted>
(b) <omitted> (ii) the representations and warranties of the Company contained in the Agreement <omitted> and that (x) are not made as of a specific date are not true and correct as of the Expiration Date, as though made on and as of the Expiration Date <omitted> , except, in the case of (x) or (y), where the failure of such representations and warranties to be true and correct <omitted> has not had a Company Material Adverse Effect (Page 81)
CONDITIONS TO THE OFFER
<omitted>
2. Additionally, Purchaser is not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in connection with the Offer if, immediately prior to the then applicable Expiration Date, any of the following conditions exist:
<omitted>
(b) <omitted> (iii) the representations and warranties set forth in Section 4.1 (Organization and Corporate Power), I-1
Section 4.2 (Authorization; Valid and Binding Agreement), Section 4.3 (Capital Stock), Section 4.20 (Brokerage), Section 4.23 (Opinion) and Section 4.24 (No Vote Required) are not true and correct in all respects, except for immaterial inaccuracies, as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty is not true and correct, except for immaterial inaccuracies, as of such earlier date); (Pages 81-82)
CONDITIONS TO THE OFFER
<omitted>
2. Additionally, Purchaser is not required to accept for payment or <omitted> to pay for any Shares validly tendered and not validly withdrawn in connection with the Offer if, immediately prior to the then applicable Expiration Date, any of the following conditions exist:
<omitted>
(b) <omitted> (iii) the representations and warranties set forth in <omitted> Section 4.3 (Capital Stock) <omitted> are not true and correct in all respects, except for immaterial inaccuracies, as of the Expiration Date as though made on and as of such date and time (Pages 81-82)
Section 4.1. Organization and Corporate Power. <omitted> The Company has no Subsidiaries.
<omitted>
Section 4.2. Authorization; Valid and Binding Agreement. <omitted> The Company Board, at a meeting duly called and held, duly and unanimously adopted resolutions, that (a) approved this Agreement <omitted> . The Company has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Purchaser and Parent, this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity.
<omitted>
CONDITIONS TO THE OFFER
<omitted>
2. Additionally, Purchaser is not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in connection with the Offer if, immediately prior to the then applicable Expiration Date, any of the following conditions exist:
<omitted>
(b) <omitted> (iii) the representations and warranties set forth in Section 4.1 (Organization and Corporate Power), I-1
Section 4.2 (Authorization; Valid and Binding Agreement), Section 4.3 (Capital Stock), Section 4.20 (Brokerage), Section 4.23 (Opinion) and Section 4.24 (No Vote Required) are not true and correct in all respects, except for immaterial inaccuracies, as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty is not true and correct, except for immaterial inaccuracies, as of such earlier date); (Pages 81-82)
Section 4.1. Organization and Corporate Power. <omitted> The Company has no Subsidiaries.
<omitted>
Section 4.2. Authorization; Valid and Binding Agreement. <omitted> The Company Board, at a meeting duly called and held, duly and unanimously adopted resolutions, that (a) approved this Agreement <omitted> . The Company has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Purchaser and Parent, this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity.
<omitted>
CONDITIONS TO THE OFFER
<omitted>
2. Additionally, Purchaser is not required to accept for payment or <omitted> to pay for any Shares validly tendered and not validly withdrawn in connection with the Offer if, immediately prior to the then applicable Expiration Date, any of the following conditions exist:
<omitted>
(b) <omitted> (iii) the representations and warranties set forth in Section 4.1 (Organization and Corporate Power), I-1
Section 4.2 (Authorization; Valid and Binding Agreement), Section 4.3 (Capital Stock), Section 4.20 (Brokerage), Section 4.23 (Opinion) and Section 4.24 (No Vote Required) are not true and correct in all respects, except for immaterial inaccuracies (Pages 81-82) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, Opinion of Financial Advisor, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_21 | 7.2 Conditions to Obligations of Buyer and Merger Sub.
The obligations of Buyer and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Buyer and Merger Sub, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Company set forth in
<omitted>
All other representations and warranties of Company set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be likely to have a Material Adverse Effect on Company or Buyer. (Page 62)
7.2 Conditions to Obligations of Buyer and Merger Sub.
<omitted>
The representations and warranties of Company set forth in
<omitted>
All other representations and warranties of Company set forth in this Agreement <omitted> shall be true and correct in all respects <omitted> provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate,<omitted> has had or would reasonably be likely to have a Material Adverse Effect on Company or Buyer. (Page 62)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Buyer and Merger Sub, at or prior to the Effective Time, of the following conditions: (a) Representations and Warranties. The representations and warranties of Company set forth in (i) Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the 54
Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), (Pages 61-62)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of Buyer and Merger Sub. <omitted>
The representations and warranties of Company set forth in (i) Sections 3.2(a) <omitted> shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) (Pages 61-62)
3.1 Corporate Organization.
<omitted>
3.2 Capitalization.
<omitted>
(c)
Except as set forth on Section 3.2(c) of the Company Disclosure Schedule, Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Company Subsidiaries, free and clear of any liens, pledges, charges, encumbrances and security interests whatsoever (“Liens”), and all of such shares or equity ownership interests are duly
authorized and validly issued and are fully paid, nonassessable (except, with respect to Company Subsidiaries that are insured depository
institutions, as provided under 12 U.S.C. § 55 or any comparable provision of applicable state law) and free of preemptive rights, with no
personal liability attaching to the ownership thereof.
<omitted>
3.3 Authority; No Violation.
<omitted>
(a) <omitted> The execution and delivery of this Agreement and the
consummation of the Merger have been adopted by the Board of
Directors of Company.
<omitted>
This Agreement has been duly and validly executed and delivered by Company, Company Bank and (assuming due authorization, execution and delivery by Buyer and Merger Sub) constitutes a valid and binding obligation of Company and Company Bank, enforceable against Company and Company Bank in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws of general applicability relating to or affecting insured depository institutions or their parent companies or the rights of creditors generally and subject to general principles of equity (the “Enforceability Exceptions”)).
<omitted>
3.8
Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Buyer and Merger Sub, at or prior to the Effective Time, of the following conditions: (a) Representations and Warranties. The representations and warranties of Company set forth in (i) Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the 54
Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and (ii) Sections 3.1(a), 3.1(b) (with respect to Company Bank only), 3.2(c) (with respect to Company Bank only) and 3.3(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). (Pages 61-62)
3.1 Corporate Organization.
<omitted>
3.2 Capitalization.
<omitted>
(c)
Except as set forth on Section 3.2(c) of the Company Disclosure Schedule, Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Company Subsidiaries,
<omitted>
3.3 Authority; No Violation.
<omitted>
(a) <omitted> The execution and delivery of this Agreement and the
consummation of the Merger have been adopted by the Board of
Directors of Company.
<omitted>
This Agreement <omitted> constitutes a valid and binding obligation of Company and Company Bank, enforceable against Company and Company Bank in accordance with its terms <omitted>
3.8
Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of Buyer and Merger Sub. <omitted> The representations and warranties of Company set forth in (i) Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) <omitted>
and (ii) Sections 3.1(a), 3.1(b) (with respect to Company Bank only), 3.2(c) (with respect to Company Bank only) and 3.3(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects (Pages 61-62) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_57 | CONDITIONS TO THE OFFER <omitted>
(b) (i) the representations and warranties of the Company set forth in Section 4.4(a) and the first sentence of Section 4.4(c) (Capitalization, Etc.) of the Agreement shall have been true and accurate in all respects except for any immaterial inaccuracies, in each case, at and as of the Agreement Date and at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time);
I-1
(ii) the representations and warranties of the Company set forth in Section 4.4 (Capitalization, Etc.) (other than Section 4.4(a) and the first sentence of Section 4.4(c)), Section 4.3 (Authority; Binding Nature of Agreement) , Section 4.24 (Merger Approval) and Section 4.26 (Brokers and Other Advisors) of the Agreement shall have been true and accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all material respects, in each case, at and as of the Agreement Date and at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time); (iii) the representations and warranties of the Company set forth in Section 4.7(a) (Absence of Changes) shall have been true and accurate in all respects at and as of the Offer Acceptance Time as if made on and as of such time; (iv) all of the other representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses (b)(i), (b)(ii) or (b)(iii) above) shall have been accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all respects at and as of the Agreement Date and at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time), except where any failure of any representation or warranty to be so accurate has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (Page 64) | Capitalization-Other, Authority, Approval, Enforceability, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_42 | Section 4.02 Corporate Authorization. <omitted> This Agreement hasbeen duly executed and delivered by the Company and, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes avalid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as such enforceability may belimited by bankruptcy, insolvency, moratorium and other similar Applicable Laws affecting creditors’ rights generally and by general principles of specific performance, injunctive relief and other equitable remedies. (b) At a meeting duly called and held, prior to the execution of this Agreement, the Company Board unanimously duly adopted resolutions (i) determining and declaring that this Agreement, the Merger and the other transactions contemplated by this Agreement (including, for the avoidance of doubt, the Replacement) are advisable and in the best interests of the Company’s stockholders, (ii) approving the execution, delivery and performance of this Agreement, the Merger and the other transactions contemplated by this Agreement, (iii) directing that the adoption of this Agreement be submitted to a vote of the stockholders of the Company at the Stockholder Meeting and (iv) recommending adoption of this Agreement to the stockholders of the Company (the “Company Recommendation”), which resolutions have not been rescinded, modified or withdrawn, except as permitted in Section 6.03. The Company is not party to and does not have in force any stockholder rights agreement or “poison pill” or similar anti-takeover agreement or plan. Assuming that the representations of Parent and Merger Sub set forth in Section 5.10 are true and correct, the Company Board has taken all necessary action so that Section 203 of the DGCL or any similar anti-takeover, moratorium, or “control share” law applicable to the Company does not, and will not, apply to this Agreement or the transactions contemplated hereby. <omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power) , Section 4.02 (Corporate Authorization), Section 4.23 (Brokers’ Fees) and Section 4.24 (Opinion of Financial Advisor) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in Section 4.05 (Capitalization) shall have been true and correct in all respects other than de minimis inaccuracies therein as of the date of this Agreement and shall be true and correct in all respects other than de minimis inaccuracies therein as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (Page 76) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_18 | 7 . 2 Conditions to Obligations of BancorpSouth. The obligation of BancorpSouth to effect the Merger is also subject to the satisfaction, or waiver by BancorpSouth, at or prior to the Effective Time, of the following conditions: -69-
(a) Representations and Warranties.
<omitted>
All other representations and warranties of Cadence set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on Cadence or the Surviving Entity. BancorpSouth shall have received a certificate dated as of the Closing Date and signed on behalf of Cadence by the Chief Executive Officer or the Chief Financial Officer of Cadence to the foregoing effect. (Page 79)
7 . 2 Conditions to Obligations of BancorpSouth. <omitted>
(a) Representations and Warranties.
<omitted>
All other representations and warranties of Cadence set forth in this Agreement <omitted> shall be true and correct in all respects <omitted> ; provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct <omitted> has had or would reasonably be expected to have a Material Adverse Effect (Page 79)
3.2
Capitalization.
<omitted>
7 . 2 Conditions to Obligations of BancorpSouth. The obligation of BancorpSouth to effect the Merger is also subject to the satisfaction, or waiver by BancorpSouth, at or prior to the Effective Time, of the following conditions: <omitted>
(a) Representations and Warranties . The representations and warranties of Cadence set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), in each case, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and the representations and warranties of Cadence set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Cadence Bank), Section 3.2(b) (but only with respect to Cadence Bank), Section 3.3(a) and Section 3.7 (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). (Pages 78-79)
3.2
Capitalization.
<omitted>
7 . 2 Conditions to Obligations of BancorpSouth. <omitted>
(a) Representations and Warranties . The representations and warranties of Cadence set forth in Section 3.2(a) <omitted> (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) (Pages 78-79)
3.1 Corporate Organization.
<omitted>
3.2 Capitalization.
<omitted>
(b) Except
as would not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on Cadence,
Cadence owns, directly or indirectly, all the issued and outstanding
shares of capital stock or other equity ownership interests of each of
the Cadence Subsidiaries,
free and clear of any liens, claims, title
defects, mortgages, pledges, charges, and
security interests whatsoever, and any other encumbrances securing a payment or the performance of an obligation (collectively, “Liens”), and all of such shares or equity ownership interests are duly
authorized and validly issued and are fully paid, nonassessable (except, with respect to Subsidiaries that are depository institutions, as provided under any provision of applicable state law comparable to 12 U.S.C. § 55) and free of preemptive rights, with no personal liability attaching to the ownership thereof.
3.3 Authority; No Violation.
(a) Cadence has full corporate power and authority to execute and deliver this Agreement and, subject to the shareholder and other
actions described below, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the Merger have been duly and validly approved by the Board of Directors of Cadence.
<omitted>
This Agreement has been duly and validly executed and delivered by Cadence and (assuming due authorization, execution and delivery by BancorpSouth) constitutes a valid and binding obligation of Cadence, enforceable against Cadence in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws of general applicability affecting the rights of creditors generally and the availability of equitable remedies (the “Enforceability Exceptions”)).
<omitted>
3.7 Broker’s Fees.
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7 . 2 Conditions to Obligations of BancorpSouth. The obligation of BancorpSouth to effect the Merger is also subject to the satisfaction, or waiver by BancorpSouth, at or prior to the Effective Time, of the following conditions: -69-
(a) Representations and Warranties . The representations and warranties of Cadence set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), in each case, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and the representations and warranties of Cadence set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Cadence Bank), Section 3.2(b) (but only with respect to Cadence Bank), Section 3.3(a) and Section 3.7 (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). (Page 79)
3.1 Corporate Organization.
<omitted>
3.2 Capitalization.
<omitted>
(b) <omitted>
Cadence owns, directly or indirectly, all the issued and outstanding
shares of capital stock or other equity ownership interests of each of
the Cadence Subsidiaries,
<omitted>
3.3 Authority; No Violation.
(a) Cadence has full corporate power and authority to execute and deliver this Agreement and, subject to the shareholder and other
actions described below, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the Merger have been duly and validly approved by the Board of Directors of Cadence.
<omitted>
This Agreement <omitted> constitutes a valid and binding obligation of Cadence, enforceable against Cadence in accordance with its terms
<omitted>
3.7 Broker’s Fees.
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7 . 2 Conditions to Obligations of BancorpSouth. <omitted>
(a) Representations and Warranties . The representations and warranties of Cadence set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), <omitted> and the representations and warranties of Cadence set forth in Section 3.1(a), Section 3.1(b) <omitted> , Section 3.2(b) <omitted> , Section 3.3(a) and Section 3.7 <omitted> shall be true and correct in all material respects (Page 79) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
main | contract_133 | Section 7.2. Conditions to the Purchaser Parties’ Obligations to Effect the Merger. The obligations of the Purchaser Parties to effect the Merger are subject to the satisfaction (or waiver by the Purchaser Parties) of the following conditions:
<omitted>
(ii) all other representations and warranties of the Company set forth in this Agreement shall be true and correct as of the date hereof and shall be true and correct (without giving effect to any limitation as to “materiality” or Company Material Adverse Effect) as of the Closing Date as though made on the Closing Date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which representations and warranties need only be true and correct as of such date or with respect to such period), except, in the case of this clause (iii), where the failure of such representations and warranties of the Company to be so true and correct (without giving effect to any limitation as to “materiality” or Company Material Adverse Effect set forth therein), does not have, and would not reasonably be expected to have, individually, or in the aggregate, a Company Material Adverse Effect; (Page 69)
Section 7.2. Conditions to the Purchaser Parties’ Obligations to Effect the Merger.
<omitted>
(ii) all other representations and warranties of the Company set forth in this Agreement shall be true and correct <omitted> , except, in the case of this clause (iii), where the failure of such representations and warranties of the Company to be so true and correct (without giving effect to any limitation as to “materiality” or Company Material Adverse Effect set forth therein), does not have, and would not reasonably be expected to have, individually, or in the aggregate, a Company Material Adverse Effect; (Page 69)
Section 7.2. Conditions to the Purchaser Parties’ Obligations to Effect the Merger. The obligations of the Purchaser Parties to effect the Merger are subject to the satisfaction (or waiver by the Purchaser Parties) of the following conditions:
(a) (a) (i) The representations and warranties of the Company contained in <omitted> Section 4.2 (Capitalization) <omitted> of this Agreement shall be true and correct as of the date hereof and as of the Closing Date as though made on the Closing Date (except, with respect to Section 4.2, for any de minimis inaccuracies) (other than to the extent any such representation and warranty addresses matters only as of a particular date or only with respect to a specific period of time which representation and warranty needs only be true and correct as of such date or with respect to such period); and (Page 69)
Section 7.2. Conditions to the Purchaser Parties’ Obligations to Effect the Merger.
<omitted>
(a) (a) (i) The representations and warranties of the Company contained in <omitted> Section 4.2 (Capitalization) <omitted> of this Agreement shall be true and correct <omitted> (except, with respect to Section 4.2, for any de minimis inaccuracies) (Page 69)
Section 4.4. Authorization; Validity of Agreement; Company Action.
<omitted>
This Agreement has been duly executed and delivered by the Company and, subject to the Company Stockholder Approval (assuming due and valid authorization, execution and delivery hereof by each of the Purchaser Parties and assuming the accuracy of the representations in Section 5.7), is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions.
<omitted> (b) <omitted> The Board, at a meeting duly called and held <omitted> has unanimously <omitted> (ii) approved this Agreement and the Merger; <omitted>
Section 7.2. Conditions to the Purchaser Parties’ Obligations to Effect the Merger. The obligations of the Purchaser Parties to effect the Merger are subject to the satisfaction (or waiver by the Purchaser Parties) of the following conditions:
(a) (a) (i) The representations and warranties of the Company contained in Section 4.1 (Organization), Section 4.2 (Capitalization), Section 4.4 (Authorization; Validity of Agreement; Company Action), Section 4.21 (Opinion of Financial Advisor) and Section 4.9(b) (Absence of Certain Changes) of this Agreement shall be true and correct as of the date hereof and as of the Closing Date as though made on the Closing Date (except, with respect to Section 4.2, for any de minimis inaccuracies) (other than to the extent any such representation and warranty addresses matters only as of a particular date or only with respect to a specific period of time which representation and warranty needs only be true and correct as of such date or with respect to such period); and (Page 69)
Section 4.4. Authorization; Validity of Agreement; Company Action.
<omitted>
This Agreement has been duly executed and delivered by the Company and, subject to the Company Stockholder Approval (assuming due and valid authorization, execution and delivery hereof by each of the Purchaser Parties and assuming the accuracy of the representations in Section 5.7), is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions.
<omitted> (b) <omitted> The Board, at a meeting duly called and held <omitted> has unanimously <omitted> (ii) approved this Agreement and the Merger; <omitted>
Section 7.2. Conditions to the Purchaser Parties’ Obligations to Effect the Merger.
<omitted>
(a) (a) (i) The representations and warranties of the Company contained in Section 4.1 (Organization), Section 4.2 (Capitalization), Section 4.4 (Authorization; Validity of Agreement; Company Action), Section 4.21 (Opinion of Financial Advisor) and Section 4.9(b) (Absence of Certain Changes) of this Agreement shall be true and correct (Page 69) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Authority | Accuracy of Target R&W Closing Condition | 10-1 | Conditions to Closing |
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