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abridged | 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) (Page 84) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_110 | 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 as of the date of this Agreement and as of the Closing Date, as if made as of such time (Page 84) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_111 | CONDITIONS TO THE OFFER
<omitted>
(c) (i) other than the representations and warranties listed in clauses (d)(ii) and (d)(iii) in this ANNEX I, the representations and warranties of the Company Parties set forth in the Agreement will be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the Expiration Time as if made at and as of the Expiration 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 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 104) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_111 | CONDITIONS TO THE OFFER
<omitted>
(c) (i) other than the representations and warranties listed in clauses (d)(ii) and (d)(iii) in this ANNEX I, the representations and warranties of the Company Parties set forth in the Agreement will be true and correct <omitted> as of the Expiration Time as if made at and as of the Expiration Time (Page 104) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Other | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_103 | SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> The representations and warranties of the Company set forth in this Agreement <omitted> shall be true and correct in all respects <omitted> as of the Effective Time as though made on and as of such date (Page 75) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Other | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_104 | 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> as of the Closing Date as though made at and as of such date (Page 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_105 | Section 9.02
Conditions to Obligations of Parent, US Holdco and Merger Sub. <omitted> (i) The representations and warranties of the Company <omitted> set forth in Article IV of this Agreement shall be true and correct in all respects <omitted> when made and on and as of the Closing Date (Page 101) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_114 | (b) Additional Conditions to Obligation of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is further subject to the satisfaction (or waiver by Parent and Merger Sub) of the following conditions: <omitted> (ii) Other than the representations and warranties listed in clauses (iii), (iv) and (v) of this Section 2.2(b), the representations and warranties of the Company set forth in Article 3 shall be true and correct (without giving effect to any materiality, Company Material Adverse Effect or similar qualifications set forth therein) at and as of the Closing as if made at and as of such 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 will be true and correct as of such earlier date), except for such failures to be true and correct that would not reasonably be expected to have a Company Material Adverse Effect. (Page 11) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_114 | (b) Additional Conditions to Obligation of Parent and Merger Sub. <omitted> the representations and warranties of the Company set forth in Article 3 shall be true and correct <omitted> at and as of the Closing as if made at and as of such time (Page 11) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_117 | 7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> 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 (Pages 80-81) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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) (Page 94) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_120 | 7.2 Conditions to the Obligations of Parent and Merger Sub. <omitted> the representations and warranties of the Company set forth in Article III will be true and correct <omitted> as of the Closing Date as if made at and as of the Closing Date (Page 94) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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 66
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) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_122 | 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 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 (Pages 70-71) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_123 | CONDITIONS TO THE OFFER The obligation of Merger Sub to accept for purchase, 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 (h) below. Accordingly, notwithstanding any other provision of the Offer or the Agreement to the contrary, Merger Sub shall not be required to accept for purchase 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; and (ii) at any scheduled Expiration Date (subject to any extensions of the Offer pursuant to Section 1.1(c)), if: (A) the Minimum Condition, the Termination Condition and conditions set forth in clause (e) shall not be satisfied by one minute after 11:59 p.m. Eastern Time on the Expiration Date; or (B) any of the additional conditions set forth below shall not be satisfied or waived in writing by Parent: <omitted> (b) <omitted> (iii) the remaining sections of ARTICLE IV 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 date of the Agreement and as of the Offer Acceptance Time as if made of the Offer Acceptance Time (except to the extent any such representation or warranty 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, individually or in the aggregate, would not be reasonably expected to have a Material Adverse Effect; (Page 110) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Other | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_123 | CONDITIONS TO THE OFFER <omitted> (iii) the remaining sections of ARTICLE IV shall be true and correct in all respects <omitted> as of the date of the Agreement and as of the Offer Acceptance Time as if made of the Offer Acceptance Time (Page 110) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Other | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_126 | 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 as though made as of the Closing (Page 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_131 | 7.2 Conditions to Obligations of Huntington. The obligation of Huntington to effect the Merger is also subject to the satisfaction, or waiver by Huntington, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties.
<omitted>
All other representations and warranties of TCF 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 TCF or the Surviving Corporation. Huntington shall have received a certificate signed on behalf of TCF by the Chief Executive Officer or the Chief Financial Officer of TCF to the foregoing effect. (Page 74) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_131 | 7.2 Conditions to Obligations of Huntington.
<omitted>
All other representations and warranties of TCF set forth in this Agreement <omitted> 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 (Page 74) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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> (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) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_138 | Section 9.02. Conditions to the Obligations of Parent and Merger Sub . <omitted> (iii) the other representations and warranties of the Company contained in this Agreement <omitted> 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 (Page 31) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_141 | Section 6.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the fulfillment of the following conditions: (a) (i) the representations and warranties of the Company (other than Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2(f)(ii)) set forth in Article III that are qualified by a “Company Material Adverse Effect” shall be true and correct as so qualified at and as of the Closing Date as if made at and as of such time (except to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date), (ii) the representations and warranties of the Company (other than Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2(f)(ii)) set forth in Article III that are not qualified by a “Company Material Adverse Effect” (without giving any effect to materiality or similar qualifiers contained therein) shall be true and correct at and as of the Closing Date as if made at and as of such time (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, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, (Page 64) | Capitalization-Other | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_141 | Section 6.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. <omitted> (a) (i) the representations and warranties of the Company (other than Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2(f)(ii)) set forth in Article III that are qualified by a “Company Material Adverse Effect” shall be true and correct as so qualified at and as of the Closing Date as if made at and as of such time <omitted> (ii) the representations and warranties of the Company (other than Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2(f)(ii)) set forth in Article III that are not qualified by a “Company Material Adverse Effect” <omitted> shall be true and correct at and as of the Closing Date as if made at and as of such time (Page 64) | Capitalization-Other | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_140 | Section 6.3 Conditions to Obligations of Realty Income. The obligation of Realty Income to effect the Merger is subject to the satisfaction of the following conditions unless waived by Realty Income in writing: (a) Representations and Warranties . <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 (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 VEREIT Material Adverse Effect) has not had, and would not reasonably be expected to have, individually or in the aggregate, a VEREIT Material Adverse Effect. (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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | 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) | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | Conditions to Closing |
abridged | contract_147 | 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 as of the date of this Agreement and as of immediately prior to the Effective Time (Page 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | 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 | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Opinion of Financial Advisor | Accuracy of Target R&W Closing Condition | 10-7 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | 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>
2.20 Tax <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 2.20, Section 2.21 and Section 2.24 shall have been true and accurate in all material respects (Page 83) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_8 | 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 each 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 of this Agreement 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 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”) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 32)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (iii) all other representations and warranties of the Company set forth in <omitted> this Agreement shall be true and correct <omitted> except 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 32)
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 each 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> (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, and (Page 32)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (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 (Page 32)
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 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”).
<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 each 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 Section 4.3(a) (Authority), Section 4.6(a) (Company Material Adverse Effect) and Section 4.19 (Brokers) shall be true and correct in all 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 shall have been true and correct only as of such date), (Page 32)
4.3 Authority; No Violations; Approvals.
<omitted>
This Agreement <omitted> constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms,
<omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in Section 4.3(a) (Authority), Section 4.6(a) (Company Material Adverse Effect) and Section 4.19 (Brokers) shall be true and correct in all respects (Page 32) | Authority, Approval, Enforceability, No MAE, Brokers' Fee | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
rare_answers | <RARE_ANSWERS> | 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 3.22 Tax <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, Section 3.14(g) and Section 3.22 (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) | Tax | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_149 | Section 6.2 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger and 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 Closing of the following additional conditions:
(a) the representations and warranties of the Company (i) contained in Section 3.2(a) shall be true and correct in all respects (other than de minimis inaccuracies) both 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 a specific date, in which case such representations and warranties shall be so true and correct as of such specific date), (ii) contained in Section 3.2(b), Section 3.2(c), Section 3.2(d), Section 3.3, Section 3.4 and Section 3.26 (together with Section 3.2(a), the “Company Fundamental Representations”) shall be true and correct in all material respects, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, both 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 a specific date, in which case such representations and warranties shall be so true and correct as of such specific date) and (iii) contained in this Agreement (other than the Company Fundamental Representations), shall be true and correct, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, both 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 a specific date, in which case such representations and warranties shall be so true and correct as of such specific date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect; (Page 34)
Section 6.2 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. <omitted>
(a) the representations and warranties <omitted> (iii) contained in this Agreement (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, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect; (Page 34)
Section 6.2 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect theMerger and 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 Closing of the following additional conditions:
(a) the representations and warranties of the Company (i) contained in Section 3.2(a) shall be true and correct in all respects (other than de minimis inaccuracies) both 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 a specific date, in which case such representations and warranties shall be so true and correct as of such specific date) (Page 34)
Section 6.2 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. <omitted>
(a) the representations and warranties of the Company (i) contained in Section 3.2(a) shall be true and correct in all respects (other than de minimis inaccuracies) <omitted> (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date) (Page 34)
Section 3.2(d) of the Company Disclosure Letter (i) sets forth, as of the date of this Agreement, each (x) Subsidiary of the Company and (y) other Person whom the Company, directly or indirectly, owns any share capital, capital stock or other equity or voting securities or other equity interests, or any securities or obligations convertible into or exchangeable or exercisable for such share capital, capital stock, securities or interests and (ii) identifies which of the foregoing are “significant subsidiaries,” as defined in Rule 1-02(w) of Regulation S-X promulgated by the SEC. <omitted>
Section 3.3 Authority Relative to Agreement. <omitted>
(b) The Company Board has, by resolutions unanimously adopted by the Company Board, (i) approved this Agreement and the transactions contemplated by this Agreement, (ii) determined that this Agreement and the transactions contemplated by this Agreement are advisable and in the best interests of the Company and the Company’s stockholders, (iii) directed that the adoption of this Agreement be submitted to a vote at the Company Stockholders’ Meeting and (iv) resolved to make the Company Recommendation. As of the date of this Agreement, none of the aforesaid actions by the Company Board has been amended, rescinded or modified. <omitted>
Section 3.4 Vote Required. <omitted>
Section 3.26 Brokers. <omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger and 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 Closing of the following additional conditions: (a) the representations and warranties <omitted>
(ii) contained in Section 3.2(b), Section 3.2(c), Section 3.2(d), Section 3.3, Section 3.4 and Section 3.26 (together with Section 3.2(a), the “Company Fundamental Representations”) shall be true and correct in all material respects, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, both 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 a specific date, in which case such representations and warranties shall be so true and correct as of such specific date) and (iii) contained in this Agreement (other than the Company Fundamental Representations), shall be true and correct, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, both 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 a specific date, in which case such representations and warranties shall be so true and correct as of such specific date) (Page 34)
Section 3.2(d) of the Company Disclosure Letter (i) sets forth, as of the date of this Agreement, each (x) Subsidiary of the Company and (y) other Person whom the Company, directly or indirectly, owns any share capital, capital stock or other equity or voting securities or other equity interests, or any securities or obligations convertible into or exchangeable or exercisable for such share capital, capital stock, securities or interests and (ii) identifies which of the foregoing are “significant subsidiaries,” as defined in Rule 1-02(w) of Regulation S-X promulgated by the SEC. <omitted>
Section 3.3 Authority Relative to Agreement. <omitted>
(b) The Company Board has, by resolutions unanimously adopted by the Company Board, (i) approved this Agreement <omitted>, (ii) determined that this Agreement and the transactions contemplated by this Agreement are advisable <omitted>, (iii) directed that the adoption of this Agreement be submitted to a vote at the Company Stockholders’ Meeting and (iv) resolved to make the Company Recommendation <omitted>
Section 3.4 Vote Required. <omitted>
Section 3.26 Brokers. <omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. <omitted>
(a) the representations and warranties <omitted>
(ii) contained in Section 3.2(b), Section 3.2(c), Section 3.2(d), Section 3.3, Section 3.4 and Section 3.26 (together with Section 3.2(a), the “Company Fundamental Representations”) shall be true and correct in all material respects (Page 34) | Capitalization-Other, Authority, Approval, Enforceability, Subsidiaries, Brokers' Fee | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_118 | Section 6.1Conditions to Each Party’s Obligations to Effect the Mergers. <omitted> (a) Representations and Warranties. (i) Except for the representations and warranties referred to in clauses (ii) or (iii) below, each of the representations and warranties of the Company and the Partnership contained in this Agreement shall be true and correct (determined without regard to any qualification by any of the terms “material”, “Material Adverse Effect” or “Company Material Adverse Effect” therein) as of the Closing Date as though made on and as of the Closing Date (except to the extent a representation or warranty is made as of a specific date, in which case such representation or warranty shall be true and correct at and as of such date, without regard to any such qualifications therein), except where the failure of such representations and warranties to be true and correct has not had, or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) the representations and warranties of the Company and the Partnership contained in Section 3.2 (other than clauses (c), (e) and (f)) (Capitalization) 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 to the extent a representation or warranty is made as of a specific date, in which case such representation or warranty shall be true and correct in all material respects at and as of such date) and (iii) the representations and warranties of the Company and the Partnership contained in Section 3.7(b) (Absence of Certain Changes) shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (except to the extent a representation or warranty is made as of a specific date, in which case such representation or warranty shall be true and correct in all material respects at and as of such date). (Pages 37-38) | Capitalization-Other, No MAE | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_87 | ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS OF NICOLET The obligations of Nicolet to consummate the Contemplated Transactions and to take the other actions required to be taken by Nicolet at the Closing are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Nicolet in whole or in part): 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; 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 48)
ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS OF NICOLET <omitted> There shall not exist inaccuracies in the representations and warranties of the Company set forth in this Agreement <omitted> such that the aggregate effect of such inaccuracies has, or is reasonably likely to have, a Material Adverse Effect (Page 48)
Section 3.5 Capitalization. <omitted> Section 8.1 Accuracy of Representations and Warranties. <omitted> 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). (Page 48)
Section 3.5 Capitalization. <omitted> Section 8.1 Accuracy of Representations and Warranties. The representations and warranties set forth in <omitted> Section 3.5(a) shall be true and correct (except for inaccuracies which are de minimis in amount and effect). (Page 48)
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>
ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS OF NICOLET The obligations of Nicolet to consummate the Contemplated Transactions and to take the other actions required to be taken by Nicolet at the Closing are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Nicolet in whole or in part): Section 8.1 Accuracy of Representations and Warranties. <omitted> 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). (Page 48)
Section 3.3 Authorization; Enforceability. <omitted> <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>
ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS OF NICOLET <omitted> The representations and warranties set forth in Section 3.3 <omitted> shall be true and correct (except for inaccuracies which are de minimis in amount and effect). (Page 48) | Authority, Approval, Enforceability | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_141 | Section 6.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the fulfillment of the following conditions: (a) (i) the representations and warranties of the Company (other than Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2(f)(ii)) set forth in Article III that are qualified by a “Company Material Adverse Effect” shall be true and correct as so qualified at and as of the Closing Date as if made at and as of such time (except to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date), (ii) the representations and warranties of the Company (other than Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2(f)(ii)) set forth in Article III that are not qualified by a “Company Material Adverse Effect” (without giving any effect to materiality or similar qualifiers contained therein) shall be true and correct at and as of the Closing Date as if made at and as of such time (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, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, (Page 64)
Section 6.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. <omitted> (a) (i) the representations and warranties of the Company (other than Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2(f)(ii)) set forth in Article III that are qualified by a “Company Material Adverse Effect” shall be true and correct as so qualified <omitted> (ii) the representations and warranties of the Company (other than Sections 3.2(a), 3.2(b), 3.2(c), 3.2(d) and 3.2(f)(ii)) set forth in Article III that are not qualified by a “Company Material Adverse Effect” <omitted> shall be true and correct <omitted> except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, (Page 64)
Section 3.2 Capital Stock. <omitted>
Section 6.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the fulfillment of the following conditions: <omitted> (iii) the representations and warranties of the Company set forth in Sections 3.2(a) <omitted> shall be true and correct in all but de minimis respects at and as of the Closing Date as if made at and as of such time (except to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date (Page 64)
Section 3.2 Capital Stock. <omitted>
Section 6.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. <omitted>
(iii) the representations and warranties of the Company set forth in Sections 3.2(a) <omitted> shall be true and correct in all but de minimis respects (Page 64)
Section 3.2 Capital Stock. <omitted>
Section 6.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the fulfillment of the following conditions: (a) <omitted> (iii) the representations and warranties of the Company set forth in Sections 3.2(a), 3.2(c) and 3.2(f)(ii) shall be true and correct in all but de minimis respects at and as of the Closing Date as if made at and as of such time (except to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date) and (iv) the representations and warranties of the Company set forth in Sections 3.2(b) and 3.2(d) shall be true and correct in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date). (Page 64)
Section 3.2 Capital Stock. <omitted>
Section 6.3 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. <omitted> (iii) the representations and warranties of the Company set forth in <omitted> 3.2(c) and 3.2(f)(ii) shall be true and correct in all but de minimis respects <omitted> and (iv) the representations and warranties of the Company set forth in Sections 3.2(b) and 3.2(d) shall be true and correct in all material respects (Page 64) | Capitalization-Other | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | 0 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_48 | 8.2. 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 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) each other representation and warranty of the Company set forth in Article V shall be true and correct as of the Closing Date (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 (disregarding all qualifications or limitations as to “material,” “Company Material Adverse Effect” and words of similar import set forth therein) that does not constitute a Company Material Adverse Effect. (Page 56)
8.2. Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted> (iii) each other representation and warranty of the Company set forth in Article V shall be true and correct as of the Closing Date <omitted> except, in the case of this clause (iii), for any failure of any such representation and warranty to be so true and correct <omitted> that does not constitute a Company Material Adverse Effect. (Page 56)
8.2. 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 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 set forth in Section 5.1 (Organization, Good Standing and Qualification), Section 5.2(a) (Capital Structure) (other than any inaccuracies that individually or in the aggregate are de minimis relative to the total fully diluted equity capitalization of the Company), Section 5.3(a) (Corporate Authority) and Section 5.6(b) (Absence of Certain Changes) shall be true and correct in all respects as of the Closing Date (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); (Page 56)
8.2. Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted> (i) Each of the representations and warranties of the Company set forth in <omitted> Section 5.2(a) (Capital Structure) (other than any inaccuracies that individually or in the aggregate are de minimis relative to the total fully diluted equity capitalization of the Company) <omitted> shall be true and correct in all respects (Page 56)
5.1. Organization, Good Standing and Qualification. <omitted> The Company has no Subsidiaries. <omitted>
5.3. Corporate Authority; Approval and Fairness.
(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) <omitted> The Special Committee has (<omitted> (ii) received an opinion of Centerview Partners LLC, the Special Committee’s financial advisor (the “Special Committee Financial Advisor”), to the effect that the Merger Consideration is fair, from a financial point of view, as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth therein, to the holders of Shares (other than Excluded Shares and Shares that are subject to Company Restricted Share Awards) and as of the date of this Agreement such opinion has not been withdrawn, revoked or modified
8.2. 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 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 set forth in Section 5.1 (Organization, Good Standing and Qualification), <omitted> Section 5.3(a) (Corporate Authority) and Section 5.6(b) (Absence of Certain Changes) shall be true and correct in all respects as of the Closing Date (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) each of the representations and warranties of the Company set forth in Section 5.3(b) (Approval and Fairness), Section 5.17 (Takeover Statutes) and Section 5.18 (Brokers and Finders) shall be true and correct in all material respects as of the Closing Date (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 material respects as of such particular date or period of time) (disregarding all qualifications or limitations as to “material,” “Company Material Adverse Effect” and words of similar import set forth therein); (Page 56)
5.3. Corporate Authority; Approval and Fairness.(a) The Company has all requisite corporate power and authority and has taken all corporate action necessary in order to execute and deliver this Agreement <omitted> and to consummate the Mergers and the other transactions <omitted> This Agreement <omitted> constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms <omitted>
8.2. Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted> (i) Each of the representations and warranties of the Company set forth in Section 5.1 (Organization, Good Standing and Qualification), <omitted> Section 5.3(a) (Corporate Authority) and Section 5.6(b) (Absence of Certain Changes) shall be true and correct in all respects <omitted> ; (ii) each of the representations and warranties of the Company set forth in Section 5.3(b) (Approval and Fairness), Section 5.17 (Takeover Statutes) and Section 5.18 (Brokers and Finders) shall be true and correct in all material respects (Page 56) | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_16 | Section 4.1 Organization, No MAE <omitted>
Section 4.2 Company Subsidiaries. <omitted> All of 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 are owned by the Company, by a Company Subsidiary or by the Company and a Company Subsidiary, free and clear of all material Liens, excluding Permitted Liens. <omitted>
Section 4.3 Capital Structure. <omitted>
Section 4.4 Authority; Execution and Delivery; Enforceability. <omitted> The Company Board has validly adopted resolutions, by unanimous vote of the members of the Company Board present at a meeting duly called at which a quorum of directors of the Company was present, <omitted> (b) approving and declaring advisable this Agreement and the Transactions, including the Merger <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 4.5 No Conflicts; Consents. <omitted>
Section 4.18 Anti-Takeover Provisions. <omitted>
Section 4.19 Brokers’ Fees and Expenses . <omitted>
Section 4.20 Opinion of Financial Advisor. <omitted>
Section 7.5 Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The respective obligations of each of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions:
(a) Accuracy of Representations and Warranties. (i) The representations and warranties of the Company contained in this Agreement (except for the representations and warranties contained in the first sentence of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.5(c), Section 4.18, Section 4.19 and Section 4.20) 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 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: (A) 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) has not had and would not reasonably be expected to have a Company Material Adverse Effect resulting from the Company having taken any action or omitted to take any action; or (B) where the failure of such representations and warranties to be true and correct arises out of, results from or relates to the Migration. (ii) The representations and warranties of the Company contained in Section 4.3 and Section 4.5(c) shall be true and correct 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 for any failures of such representations and warranties to be so true and correct that, individually or in the aggregate, are de minimis in nature and amount. (iii) The representations and warranties of the Company contained in the first sentence of Section 4.1, Section 4.2, Section 4.4, Section 4.18, Section 4.19 and Section 4.20 shall be true and correct in all respects at and as of the Closing Date as if made at and as of such time. (Page 65) | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_101 | Section 6.2. Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction (or waiver in writing by Parent, if permissible under applicable Law) at or prior to the Effective Time of each 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 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 “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. (Page 68)
Section 6.2. Conditions to 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> 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. (Page 68)
Section 6.2. Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction (or waiver in writing by Parent, if permissible under applicable Law) at or prior to the Effective Time of each of the following conditions: (a) Representations and Warranties. Each of (i) the representations and warranties of the Company set forth in Section 3.3(a), Section 3.3(b)(i)-(iii), Section 3.4(c) and Section 3.7(b) 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), except, in the case of Section 3.3(a) and Section 3.3(b)(i)-(iii), for inaccuracies that are de minimis; (Page 68)
Section 6.2. Conditions to Obligations of Parent and Merger Sub. <omitted> Each of (i) the representations and warranties of the Company set forth in Section 3.3(a), Section 3.3(b)(i)-(iii) <omitted> shall be true and correct <omitted> except, in the case of Section 3.3(a) and Section 3.3(b)(i)-(iii), for inaccuracies that are de minimis; (Page 68)
Section 3.1. Organization and Power. <omitted>
Section 3.3. Capitalization. <omitted> (b) <omitted> as of the date hereof, there are no outstanding or reserved for issuance <omitted> (iv) contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities <omitted>
(c) No shares of capital stock of the Company are owned by any Subsidiary of the Company. <omitted>
Section 3.4. Authority. (a) <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery 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, except as limited by <omitted> (ii) general principles of equity, whether such enforceability is considered in a proceeding in equity or at Law (clauses (i) and (ii) collectively, the “Enforceability Exceptions”). <omitted>
(b) The Company Board, at a meeting duly called and held, has (i) determined that the Merger is fair to, and in the best interests of, the Company and its stockholders, (ii) approved and declared advisable this Agreement and the Merger and the other transactions contemplated hereby, (iii) directed that the adoption of this Agreement be submitted to a vote of the stockholders of the Company and (iv) subject to Section 5.2, resolved to recommend adoption of this Agreement by the stockholders of the Company (the “Company Recommendation”),which resolutions, as of the date hereof, remain in full force and effect and have not been subsequently rescinded, modified or withdrawn in any way. <omitted>
Section 3.7. Absence of Certain Changes or Events. <omitted>
Section 3.20. Brokers. <omitted>
Section 6.2. Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction (or waiver in writing by Parent, if permissible under applicable Law) at or prior to the Effective Time of each of the following conditions: (a) Representations and Warranties. Each of (i) the representations and warranties of the Company set forth in Section 3.3(a), Section 3.3(b)(i)-(iii), Section 3.4(c) and Section 3.7(b) 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), except, in the case of Section 3.3(a) and Section 3.3(b)(i)-(iii), for inaccuracies that are de minimis; (ii) the representations and warranties of the Company set forth in Section 3.1(a), Section 3.3(b)(iv), Section 3.3(c), Section 3.4(a), Section 3.4(b) and Section 3.20 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); (Page 68)
Section 3.1. Organization and Power. <omitted>
Section 3.3. Capitalization. <omitted> (b) <omitted> as of the date hereof, there are no outstanding or reserved for issuance <omitted> (iv) contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities <omitted>
(c) No shares of capital stock of the Company are owned by any Subsidiary of the Company. <omitted>
Section 3.4. Authority. (a) The Company has the requisite corporate power and authority to execute and deliver this Agreement and, subject to obtaining the Stockholder Approval, to perform its obligations hereunder and to consummate the Merger and the other transactions contemplated hereby. <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery 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, except as limited by <omitted> (ii) general principles of equity, whether such enforceability is considered in a proceeding in equity or at Law (clauses (i) and (ii) collectively, the “Enforceability Exceptions”). <omitted>
(b) The Company Board, at a meeting duly called and held, has (i) determined that the Merger is fair to, and in the best interests of, the Company and its stockholders, (ii) approved and declared advisable this Agreement and the Merger and the other transactions contemplated hereby, (iii) directed that the adoption of this Agreement be submitted to a vote of the stockholders of the Company and (iv) subject to Section 5.2, resolved to recommend adoption of this Agreement by the stockholders of the Company (the “Company Recommendation”),which resolutions, as of the date hereof, remain in full force and effect and have not been subsequently rescinded, modified or withdrawn in any way. <omitted>
Section 3.7. Absence of Certain Changes or Events. <omitted>
Section 3.20. Brokers. <omitted>
Section 6.2. Conditions to Obligations of Parent and Merger Sub. <omitted> Each of (i) the representations and warranties of the Company set forth in <omitted> Section 3.4(c) and Section 3.7(b) shall be true and correct <omitted> (ii) the representations and warranties of the Company set forth in Section 3.1(a), Section 3.3(b)(iv), Section 3.3(c), Section 3.4(a), Section 3.4(b) and Section 3.20 shall be true and correct in all material respects (Page 68) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_83 | 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 4.22. 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) 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) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_86 | Section 6.02 Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of each of the following additional conditions:
(a) Representations and Warranties . <omitted> (iv) any other representation and warranty of the Company contained in this Agreement, without regard to materiality or Company Material Adverse Effect qualifiers contained within such representations and warranties, shall be true and correct in all respects as of the Effective Time as though made as of the Effective Time (except to the extent expressly made as of a specific date or expressly covering a specified period, in which case as of such specific date or such specified period), other than failures to be true and correct that, individually or in the aggregate, would not have a Company Material Adverse Effect. (Page 24)
Section 6.02 Conditions to Obligations of Parent and Sub. <omitted>
(a) Representations and Warranties . <omitted> (iv) any other representation and warranty of the Company contained in this Agreement <omitted> shall be true and correct <omitted> other than failures to be true and correct that, individually or in the aggregate, would not have a Company Material Adverse Effect. (Page 24)
Section 6.02 Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of each of the following additional conditions: (a) Representations and Warranties. <omitted>
(ii) the representations and warranties set forth in clauses (a) and (b) <omitted> of Section 3.02 (Capitalization) shall be true and correct in all respects as of the Effective Time as though made on and as of the Effective Time (except to the extent expressly made as of a specific date, in which case as of such specific date), except for any de minimis inaccuracies; (Page 24)
Section 6.02 Conditions to Obligations of Parent and Sub. <omitted>
(a) Representations and Warranties. <omitted>
(ii) the representations and warranties set forth in clauses (a) and (b) <omitted> of Section 3.02 (Capitalization) shall be true and correct <omitted> except for any de minimis inaccuracies; (Page 24)
Section 3.03 Authority. (a) <omitted> This Agreement has been, and any other agreements or instruments to be delivered pursuant hereto by the Company will be, duly and validly executed and delivered by the Company and (assuming the due authorization, execution and delivery of this Agreement by Parent and Sub and assuming the accuracy of the representations and warranties contained in Section 4.10) this Agreement constitutes, and when executed and delivered, such other agreements and instruments will constitute, the valid and legally binding obligation of the Company enforceable against the Company in accordance with their respective terms <omitted> (b) The Company Board, at a meeting duly called and held, has (i) determined that this Agreement, including the Plan of Merger, and the Transactions are in the best interests of the Company and its shareholders, (ii) unanimously approved, adopted and declared advisable the execution, delivery and performance of this Agreement (including the Plan of Merger) by the Company and, subject to receiving the Company Shareholder Approval, the consummation by the Company of the Transactions, including the Merger <omitted>
Section 6.02 Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of each of the following additional conditions: (a) Representations and Warranties . (i) The representations and warranties set forth in Section 3.01(a) (Organization and Qualification; Subsidiaries) and Section 3.09(c) (Absence of Certain Changes) shall be true and correct in all respects as of the Effective Time as though made on and as of the Effective Time; (ii) the representations and warranties set forth in <omitted> , solely with respect to the capitalization of the Company and not of any Company Subsidiary, clauses (d) and (e) of Section 3.02 (Capitalization) shall be true and correct in all respects as of the Effective Time as though made on and as of the Effective Time (except to the extent expressly made as of a specific date, in which case as of such specific date), except for any de minimis inaccuracies; (iii) the representations and warranties set forth in Section 3.03 (Authority), Section 3.23 (Takeover Statutes), Section 3.24 (Vote Required) and Section 3.25 (Brokers), without regard to materiality or Company Material Adverse Effect qualifiers contained within such representations and warranties, shall be true and correct in all material respects on and as of the Effective Time as though made on and as of the Effective Time (except to the extent expressly made as of a specific date, in which case as of such specific date) (Page 24)
Section 3.03 Authority. (a) <omitted> This Agreement has been, and any other agreements or instruments to be delivered pursuant hereto by the Company will be, duly and validly executed and delivered by the Company and (assuming the due authorization, execution and delivery of this Agreement by Parent and Sub and assuming the accuracy of the representations and warranties contained in Section 4.10) this Agreement constitutes, and when executed and delivered, such other agreements and instruments will constitute, the valid and legally binding obligation of the Company enforceable against the Company in accordance with their respective terms <omitted> (b) The Company Board, at a meeting duly called and held, has (i) determined that this Agreement, including the Plan of Merger, and the Transactions are in the best interests of the Company and its shareholders, (ii) unanimously approved, adopted and declared advisable the execution, delivery and performance of this Agreement (including the Plan of Merger) by the Company and, subject to receiving the Company Shareholder Approval, the consummation by the Company of the Transactions, including the Merger <omitted>
Section 6.02 Conditions to Obligations of Parent and Sub. <omitted> (i) The representations and warranties set forth in Section 3.01(a) (Organization and Qualification; Subsidiaries) and Section 3.09(c) (Absence of Certain Changes) shall be true and correct in all respects <omitted> ; (ii) the representations and warranties set forth in <omitted> , solely with respect to the capitalization of the Company and not of any Company Subsidiary, clauses (d) and (e) of Section 3.02 (Capitalization) shall be true and correct in all respects <omitted> except for any de minimis inaccuracies; (iii) the representations and warranties set forth in Section 3.03 (Authority), Section 3.23 (Takeover Statutes), Section 3.24 (Vote Required) and Section 3.25 (Brokers) <omitted> shall be true and correct in all material respects (Page 24) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Takeover Statutes, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_17 | 7.2
Conditions to Obligations of BancShares Parties.
The obligation of the BancShares Parties to effect the transactions contemplated by this Agreement is also subject to the satisfaction, or
waiver by the BancShares Parties, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties.
<omitted>
All other representations and warranties of CIT 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 CIT, the Surviving Bank, or BancShares. (Page 66)
7.2
Conditions to Obligations of BancShares Parties.
<omitted>
(a) Representations and Warranties.
<omitted>
All other representations and warranties of CIT 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 expected to have a Material Adverse Effect on CIT, the Surviving Bank, or BancShares. (Page 66)
3.2 Capitalization
<omitted>
7.2 Conditions to Obligations of BancShares Parties. The obligation of the BancShares Parties to effect the transactions contemplated by this Agreement is also subject to the satisfaction, or waiver by the BancShares Parties, at or prior to the Effective Time, of the following conditions: (a) Representations and Warranties. The representations and warranties of CIT 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) 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), (Page 66)
3.2 Capitalization
<omitted>
7.2 Conditions to Obligations of BancShares Parties. <omitted>
(a) Representations and Warranties. The representations and warranties of CIT set forth in Section 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) (Page 66)
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 CIT, CIT owns, directly or indirectly, all the issued and outstanding shares of capital stock or other equity ownership interests of each of the CIT Subsidiaries, free and clear of any liens, claims, title defects, mortgages, pledges, charges, encumbrances and security interests whatsoever (“Liens”), and all 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 12U.S.C. § 55) and free of preemptive rights, with no personal liability attaching to the ownership thereof.
3.3 Authority; No Violation.
(a) <omitted> The execution and delivery of this Agreement by CIT, the performance by CIT of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly and validly approved by the Board of Directors of CIT. <omitted> This Agreement has been duly and validly executed and delivered by CIT and (assuming due authorization, execution and delivery by the BancShares Parties) constitutes a valid and binding obligation of CIT, enforceable
10
against CIT 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>
(b) Neither the execution, delivery or performance of this Agreement by CIT, nor the execution, delivery, or performance of the Bank Merger Agreement by CIT Subsidiary Bank, nor the consummation by CIT or CIT Subsidiary Bank of the transactions contemplated hereby or thereby (including the Merger, the Second Step Merger, and the Bank Merger), nor compliance by CIT or CIT Subsidiary Bank with any of the terms or provisions hereof or thereof, will (i) violate any provision of the CIT Certificate of Incorporation, the CIT Bylaws or the certificate of incorporation and bylaws of CIT Subsidiary Bank
<omitted>
3.7 Broker’s Fees.
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of BancShares Parties. The obligation of the BancShares Parties to effect the transactions contemplated by this Agreement is also subject to the satisfaction, or waiver by the BancShares Parties, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of CIT set forth in Section 3.2(a), Section 3.7 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 CIT set forth in Section 3.1(a), Section 3.1(b) (but only with respect to CIT Subsidiary Bank), Section 3.2(b) (but only with respect to CIT Subsidiary Bank), Section 3.3(a) and Section 3.3(b)(i) (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 66)
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 CIT, CIT owns, directly or indirectly, all the issued and outstanding shares of capital stock or other equity ownership interests of each of the CIT Subsidiaries, <omitted>
3.3 Authority; No Violation.
(a) <omitted> The execution and delivery of this Agreement by CIT, the performance by CIT of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly and validly approved by the Board of Directors of CIT. <omitted> This Agreement has been duly and validly executed and delivered by CIT and (assuming due authorization, execution and delivery by the BancShares Parties) constitutes a valid and binding obligation of CIT, enforceable
10
against CIT 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>
(b) Neither the execution, delivery or performance of this Agreement by CIT, nor the execution, delivery, or performance of the Bank Merger Agreement by CIT Subsidiary Bank, nor the consummation by CIT or CIT Subsidiary Bank of the transactions contemplated hereby or thereby (including the Merger, the Second Step Merger, and the Bank Merger), nor compliance by CIT or CIT Subsidiary Bank with any of the terms or provisions hereof or thereof, will (i) violate any provision of the CIT Certificate of Incorporation, the CIT Bylaws or the certificate of incorporation and bylaws of CIT Subsidiary Bank
<omitted>
3.7 Broker’s Fees.
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of BancShares Parties. <omitted>
(a) Representations and Warranties. The representations and warranties of CIT set forth in <omitted> Section 3.7 and Section 3.8(a) <omitted> shall be true and correct <omitted> , and the representations and warranties of CIT set forth in Section 3.1(a), Section 3.1(b) (but only with respect to CIT Subsidiary Bank), Section 3.2(b) (but only with respect to CIT Subsidiary Bank), Section 3.3(a) and Section 3.3(b)(i) <omitted> shall be true and correct in all material respects (Page 66) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_93 | Section 6.03 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the Merger are subject to the fulfillment or written waiver by Buyer prior to the Closing Date of each of the following conditions: (a) Representations and Warranties. The representations and warranties of Company set forth in (i) Sections 3.03 and 3.10(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 3.03, 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 (ii) Sections 3.02, 3.05, 3.06, 3.08, 3.10(a) (other than clause (i)) and 3.15 (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). All other representations 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
78
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. Buyer shall have received a certificate, dated as of the Closing Date, signed on behalf of Company by the Chief Executive Officer and the Chief Financial Officer of Company to the foregoing effect. (Pages 83-84) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_137 | Section 4.3 Authority. <omitted> This Agreement has been duly executed and delivered by TRMT, and assuming due authorization, execution and delivery by RMRM, constitutes a legally valid and binding obligation of TRMT, enforceable against TRMT in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). <omitted> (b) The TRMT Board, at a duly called and held meeting, has unanimously (i) duly and validly authorized the execution and delivery of this Agreement and approved, adopted and declared advisable this Agreement, the Merger and the other Transactions to which TRMT is a party <omitted>
Section 4.7 Absence of Certain Changes. From December 31, 2020 through the date of this Agreement, <omitted> (b) there has not been any TRMT Material Adverse Effect.
Section 8.2 Conditions to Obligations of RMRM. The obligations of RMRM to effect the Merger and to consummate the other Transactions are subject to the satisfaction or (to the extent permitted by applicable Law) waiver (in writing) by RMRM, on or prior to the Closing Date, of each of the following additional conditions: (a) Representations and Warranties. (i) The representations and warranties set forth in Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2 (Capitalization) (other than Sections 4.2(a)-(b)), Section 4.3 (Authority), Section 4.7(b) (Absence of Certain Changes), Section 4.10(b) (REIT Qualification), Section 4.19 (Brokers) and Section 4.22 (Takeover Statutes), shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or TRMT Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or TRMT Material Adverse Effect) as of the date of this Agreement and as of the Closing as though made as of the Closing (except to the extent such representations and warranties are made as of an earlier date, in which case as of such earlier date), and (ii) each of the other representations and warranties of TRMT contained in this Agreement 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 such representations and warranties are made as of an earlier date, in which case as of such earlier date), except in the case of clause (ii) where such failure(s) to be true and correct (without giving effect to any materiality or TRMT Material Adverse Effect qualifications set forth therein) have not had and would not reasonably be expected to have, individually or in the aggregate, a TRMT Material Adverse Effect. (Page 34) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_72 | Section 4.02 Corporate Authorization. <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 and assuming the accuracy of the representation set forth in Section 5.07(c), 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) On or prior to the date of this Agreement, (i) the Company Special Committee has received from Evercore Group L.L.C. (the “Special Committee Financial Advisor”), its written opinion, subject to the assumptions, limitations, qualifications and conditions set forth therein, that the Merger Consideration to be received by Public Stockholders in the Merger is fair, from a financial point of view, to such holders, (ii) the Company Board has received from J.P. Morgan Securities LLC, its written opinion, subject to the assumptions, limitations, qualifications and conditions set forth therein, that the Merger Consideration to be received by Public Stockholders in the Merger is fair, from a financial point of view, to such holders, and (iii) the Company Board (acting on the unanimous recommendation of the Company Special Committee) has, at a meeting duly called and held in which all directors of the Company Special Committee were present, determined that this Agreement and the Transactions, including the Merger, are fair to and in the best interest of the Company and the holders of Company Common Stock, and has duly adopted resolutions by a vote(w) determining that this Agreement and the Transactions are fair to, advisable and in the best interests of the Company and the Company’s stockholders, (x) approving this Agreement and the Transactions <omitted>
Section 4.05 Capitalization; Subsidiaries <omitted>
Section 4.07 Absence of Certain Changes. Between the Company Balance Sheet Date and the date of this Agreement, except as otherwise contemplated or permitted by this Agreement, (i) a Company Material Adverse Effect has not occurred, <omitted>
Section 4.19 No Brokers <omitted>
Section 7.02 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 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) (Corporate Existence and Power), 4.02 (Corporate Authorization) and Section 4.18 (Required Vote) (collectively, the “Company Fundamental Representations”) shall be true and correct in all material 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 for representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date;
75
(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) and the representations and warranties made by the Company in Section 4.05, 4.07(i) and 4.19 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, 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, individually or in the aggregate, a Company Material Adverse Effect;
(iii) Each of the representations and warranties made by the Company in Sections 4.05 and 4.19 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, 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
(iv) The representation and warranty made by the Company in Section 4.07(i) shall be true and correct in all respects. (Pages 79-80) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_56 | 7.2 Conditions to Obligations of NYCB and Merger Sub. The obligation of NYCB and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by NYCB, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. <omitted> All other representations and warranties of Flagstar set forth in this Agreement (read without giving effect to any qualification as to the 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 Flagstar or the Surviving Entity. NYCB shall have received a certificate dated as of the Closing Date and signed on behalf of Flagstar by the Chief Executive Officer and the Chief Financial Officer of Flagstar to the foregoing effect. (Page 68)
7.2 Conditions to Obligations of NYCB and Merger Sub. <omitted>
All other representations and warranties of Flagstar 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 expected to have a Material Adverse Effect on Flagstar or the Surviving Entity. (Page 68)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of NYCB and Merger Sub. The obligation of NYCB and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by NYCB, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of Flagstar 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 -59-
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). (Pages 67-68)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of NYCB and Merger Sub. <omitted>
(a) Representations and Warranties. The representations and warranties of Flagstar set forth in Section 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 67-68)
3.1 Corporate Organization. <omitted>
3.2 Capitalization. <omitted>
(c)
Flagstar, Flagstar owns, directly or indirectly, all the issued and
outstanding shares of capital stock or other equity ownership interests
of each of the Flagstar Subsidiaries, free and clear of any
liens, claims, title defects, mortgages, pledges, charges, encumbrances
and security
interests whatsoever (“
Liens
”), and all such shares
or equity ownership interests are duly authorized and validly issued and are fully paid,
nonassessable (except, with respect to Flagstar Bank, as may be provided
under Home Owners’ Loan Act) and free of preemptive rights, with
no
personal liability attaching to the ownership thereof, except, in the case of all Subsidiaries other
than Flagstar Bank, as would not, either
individually or in the
aggregate, reasonably be expected to have Material Adverse Effect on
Flagstar
<omitted>
3.3 Authority; No Violation.
(a) Flagstar 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
transactions contemplated hereby have been duly and validly approved by
the Board of Directors of Flagstar.
<omitted>
This Agreement has been duly and validly executed and delivered by
Flagstar and (assuming due authorization,
execution and delivery by NYCB
and Merger Sub) constitutes a valid and binding obligation of Flagstar, enforceable against Flagstar in
accordance with its terms (except in all cases as such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
forbearance,
moratorium, reorganization or similar laws of general applicability relating to or affecting insured
depositary institutions or their parent
companies or 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 NYCB and Merger Sub. The obligation of NYCB and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by NYCB, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of Flagstar 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 <omitted>
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). The representations and warranties of Flagstar set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Flagstar Bank), Section 3.2(b), Section 3.2(c) (but only with respect to Flagstar 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 67-68)
3.1 Corporate Organization. <omitted>
3.2 Capitalization. <omitted>
(c)
Flagstar, Flagstar owns, directly or indirectly, all the issued and
outstanding shares of capital stock or other equity ownership interests
of each of the Flagstar Subsidiaries,
<omitted>
3.3 Authority; No Violation.
(a) Flagstar 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
transactions contemplated hereby have been duly and validly approved by
the Board of Directors of Flagstar.
<omitted>
This Agreement has been duly and validly executed and delivered by
Flagstar and <omitted> constitutes a valid and binding obligation of Flagstar, enforceable against Flagstar 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 NYCB and Merger Sub. <omitted>
The representations and warranties of Flagstar set forth in <omitted> Section 3.8(a) <omitted> shall be true and <omitted>
correct <omitted> . The representations and warranties of Flagstar set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Flagstar Bank), Section 3.2(b), Section 3.2(c) (but only with respect to Flagstar Bank), Section 3.3(a) and Section 3.7 <omitted> shall be true and correct in all material respects (Pages 67-68) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_136 | Section 3.1 Due Organization; Subsidiaries, Etc. (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware and has all necessary power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; <omitted> (b) The Company does not own any capital stock of, or any other equity interest of, or any equity interest of any nature in, any other Entity other than its Subsidiaries. <omitted> (c) Section 3.1(c) of the Company Disclosure Schedule identifies each Subsidiary of the Company and indicates its jurisdiction of organization. <omitted>
Section 3.20 Authority; Binding Nature of Agreement. The Company has the corporate power and authority to enter into and deliver and to perform its obligations under this Agreement and to consummate the Transactions. <omitted> The Company Board (at a meeting duly called and held, at which all directors of the Company were present and voting in favor) has unanimously approved the Company Board Recommendation, which resolutions constituting the Company Board Recommendation, subject to Section 6.1, have not been subsequently withdrawn or modified in a manner adverse to Parent. <omitted> this Agreement constitutes the legal, valid and binding obligations of the Company and is enforceable against the Company in accordance with its terms, <omitted>
Section 3.22 Merger Approval. Following the Offer Acceptance Time, assuming satisfaction of the Minimum Condition and the accuracy of the representations and warranties set forth in Section 4.8, no vote of the holders of any class or series of the Company’s capital stock will be required in order to adopt this Agreement and the Merger. <omitted>
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 (h) below. <omitted> (b) (i) the representations and warranties of the Company as set forth in Section 3.1 (Due Organization; Subsidiaries, Etc.), Section 3.20 (Authority; Binding Nature of Agreement) and Section 3.22 (Merger Approval) shall have been accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects at and as of the Offer Acceptance Time as if made at and as of such time (it being understood that 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)(i)) only as of such date); (ii) the representations and warranties of the Company as set forth in Section 3.5(a) (Absence of Changes) shall have been accurate as of the date of this Agreement and shall be accurate at and as of the Offer Acceptance Time as if made on and as of such time (it being understood that 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)(ii)) only as of such date); (iii) the representations and warranties of the Company as set forth in Section 3.3(a) and the first sentence of Section 3.3(c) (Capitalization) shall have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects at and as of the Offer Acceptance Time as if made at and as of such time, other than de minimis inaccuracies (it being understood that the accuracy of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable de minimis standard as set forth in this clause (b)(iii)) only as of such date); and <omitted> (iv) the representations and warranties of the Company as set forth in this Agreement (other than those referred to in clauses (i), (ii) and (iii) above) shall have been accurate in all respects as of the date of this Agreement, and shall be accurate in all respects at and as of the Offer Acceptance Time as if made at and as of such time, except that any inaccuracies in such representations and warranties shall 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 Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded (except in the case of the standard for what constitutes a defined term hereunder and the use of such defined term herein) and (B) 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)(iv)) only as of such date); (Pages 81-82) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Other | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_36 | Section 7.2 Conditions to Obligations of Parent and Acquisition Sub to Effect the Merger. The obligations of Parent and AcquisitionSub to effect the Merger are, in addition to the conditions set forth in Section 7.1, further subject to the satisfaction or (to the extent notprohibited by Law) waiver by Parent at or prior to the Effective Time of the following conditions: (a) each of the representations and warranties of the Company contained in this Agreement, without giving effect to any materiality or “Company Material Adverse Effect” or similar qualifications therein, shall be true and correct as of the Closing Date, except for such failures to be true and correct as would not, individually or in the aggregate, have a Company Material Adverse Effect (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date only); (Page 67)
Section 7.2 Conditions to Obligations of Parent and Acquisition Sub to Effect the Merger. <omitted> (a) each of the representations and warranties of the Company contained in this Agreement <omitted> shall be true and correct <omitted> , except for such failures to be true and correct as would not, individually or in the aggregate, have a Company Material Adverse Effect (Page 67)
Section 7.2 Conditions to Obligations of Parent and Acquisition Sub to Effect the Merger. The obligations of Parent and Acquisition Sub to effect the Merger are, in addition to the conditions set forth in Section 7.1, further subject to the satisfaction or (to the extent not prohibited by Law) waiver by Parent at or prior to the Effective Time of the following conditions: <omitted> the representations and warranties contained in <omitted> (ii) Section 4.2(a) (Capitalization) (other than clauses (C) through (E) of the fourth sentence of Section 4.2(a)), Section 4.2(d)(ii) (on an aggregate basis and not with respect to any individual Company Equity Award) and Section 4.2(d)(iii) (on an aggregate basis and not with respect to any individual Company Equity Award) shall be required to be true and correct in all respects as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date only) other than for de minimis errors and (Page 68)
Section 7.2 Conditions to Obligations of Parent and Acquisition Sub to Effect the Merger. <omitted> the representations and warranties contained in <omitted> (ii) Section 4.2(a) (Capitalization) (other than clauses (C) through (E) of the fourth sentence of Section 4.2(a)), Section 4.2(d)(ii) (on an aggregate basis and not with respect to any individual Company Equity Award) and Section 4.2(d)(iii) (on an aggregate basis and not with respect to any individual Company Equity Award) shall be required to be true and correct in all respects <omitted> other than for de minimis errors and (Page 68)
Section 4.3 Authority Relative to Agreement. (a)
<omitted>
This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and
delivery of this Agreement by the other parties hereto, 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 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.
<omitted>
(b)
The board of directors of the Company has unanimously (i) approved this
Agreement, the Merger and the other transactions
contemplated hereby
<omitted>
Section 7.2 Conditions to Obligations of Parent and Acquisition Sub to Effect the Merger. The obligations of Parent and Acquisition Sub to effect the Merger are, in addition to the conditions set forth in Section 7.1, further subject to the satisfaction or (to the extent not prohibited by Law) waiver by Parent at or prior to the Effective Time of the following conditions: <omitted> provided, however, that the representations and warranties contained in (i) Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.3 (Authority Relative to Agreement), Section 4.20 (Brokers), Section 4.23 (Takeover Statutes) and Section 4.24 (Rights Agreement), without giving effect to any “materiality” or “Company Material Adverse Effect” or similar qualifications therein, shall be required to be true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties are 58
expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date only), (ii) Section 4.2(a) (Capitalization) (other than clauses (C) through (E) of the fourth sentence of Section 4.2(a)), Section 4.2(d)(ii) (on an aggregate basis and not with respect to any individual Company Equity Award) and Section 4.2(d)(iii) (on an aggregate basis and not with respect to any individual Company Equity Award) shall be required to be true and correct in all respects as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date only) other than for de minimis errors and (iii) Section 4.9(ii) (Absence of Certain Changes) shall be required to be true and correct in all respects as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date only); (Pages 67-68)
Section 4.3 Authority Relative to 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 board of directors of the Company has unanimously (i) approved this
Agreement, the Merger and the other transactions
contemplated hereby
<omitted>
Section 7.2 Conditions to Obligations of Parent and Acquisition Sub to Effect the Merger. <omitted> the representations and warranties contained in (i) Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.3 (Authority Relative to Agreement), Section 4.20 (Brokers), Section 4.23 (Takeover Statutes) and Section 4.24 (Rights Agreement), <omitted> shall be required to be true and correct in all material respects <omitted> (ii) Section 4.2(a) (Capitalization) (other than clauses (C) through (E) of the fourth sentence of Section 4.2(a)), Section 4.2(d)(ii) (on an aggregate basis and not with respect to any individual Company Equity Award) and Section 4.2(d)(iii) (on an aggregate basis and not with respect to any individual Company Equity Award) shall be required to be true and correct in all respects <omitted> other than for de minimis errors and and (iii) Section 4.9(ii) (Absence of Certain Changes) shall be required to be true and correct in all respects (Pages 67-68) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE, Brokers' Fee, Takeover Statutes, Rights Agreement | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | 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)
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> except <omitted> 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 Material Adverse Effect on the Company. (Page 83)
Section 3.1 Representations and Warranties of the Company. <omitted> (b) Capital Structure. <omitted>
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. (i) The representations and warranties of the Company set forth in the first two sentences of Section 3.1(b)(i) and in Section 3.1(b)(ii) and Section 3.1(b)(iii) 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) (Page 83)
Section 3.1 Representations and Warranties of the Company. <omitted> (b) Capital Structure. <omitted>
Section 6.3 Conditions to Obligations of Parent. <omitted> The representations and warranties of the Company set forth in the first two sentences of Section 3.1(b)(i) <omitted> shall be true and correct in all respects, except for any de minimis inaccuracies (Page 83)
Section 3.1 Representations and Warranties of the Company. <omitted>
(a) Organization, Standing and Power. <omitted> (v) All issued and outstanding shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company that are owned by the Company or any of its Subsidiaries are owned, directly or indirectly, by the Company free and clear of all Liens other than Permitted Liens and transfer restrictions imposed by any applicable Law or the Organizational Documents of any Subsidiary. <omitted>
(b) Capital Structure <omitted>
(m) Board Approval. The Board of Directors of Parent, by resolutions duly adopted by unanimous vote, has
<omitted> (B) taken all appropriate and
necessary actions to render any and all limitations on mergers,
business combinations and ownership of shares of Parent Common Stock as set forth in Parent’s Organizational Documents or in any state takeover
statute to be inapplicable to the transactions contemplated by this Agreement. <omitted>
(n) Vote Required. <omitted>
(u) Brokers or Finders. <omitted>
(t) Investment Company Act of 1940. Neither the Company nor any Subsidiary of the Company is, or on the Closing Date will be, required to be registered as an investment company under the Investment Company Act of 1940, as amended. <omitted>
(v) Opinion of Company Financial Advisor. <omitted>
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>
(i) The representations and warranties of the Company set forth in the first two sentences of Section 3.1(b)(i) and in Section 3.1(b)(ii) and Section 3.1(b)(iii) 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), (ii) the representations and warranties of the Company set forth in Section 3.1(l)(ii) 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, (iii) the representations and warranties of the Company set forth in Section 3.1(a), Section 3.1(b) (other than the first two sentences of Section 3.1(b)(i), Section 3.1(b)(ii) and Section 3.1(b)(iii)), Section 3.1(m), Section 3.1(n), Section 3.1(t), Section 3.1(u) and Section 3.1(v) 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 (Page 83)
Section 3.1 Representations and Warranties of the Company. <omitted>
(a) Organization, Standing and Power. <omitted> (v) All issued and outstanding shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company that are owned by the Company or any of its Subsidiaries are owned, directly or indirectly, by the Company <omitted>
(b) Capital Structure <omitted>
(m) Board Approval. The Board of Directors of Parent, by resolutions duly adopted by unanimous vote, has
<omitted> (B) taken all appropriate and
necessary actions to render any and all limitations on mergers,
business combinations and ownership of shares of Parent Common Stock as set forth in Parent’s Organizational Documents or in any state takeover
statute to be inapplicable to the transactions contemplated by this Agreement.<omitted>
(n) Vote Required. <omitted>
(u) Brokers or Finders. <omitted>
(t) Investment Company Act of 1940. Neither the Company nor any Subsidiary of the Company is, or on the Closing Date will be, required to be registered as an investment company under the Investment Company Act of 1940, as amended. <omitted>
(v) Opinion of Company Financial Advisor. <omitted>
Section 6.3 Conditions to Obligations of Parent. <omitted>
(a) <omitted> (i) The representations and warranties of the Company set forth in the first two sentences of Section 3.1(b)(i) and in Section 3.1(b)(ii) and Section 3.1(b)(iii) shall be true and correct in all respects, except for any de minimis inaccuracies, <omitted> (ii) the representations and warranties of the Company set forth in Section 3.1(l)(ii) shall be true and correct in all respects <omitted> , <omitted> (iii) the representations and warranties of the Company set forth in Section 3.1(a), Section 3.1(b) (other than the first two sentences of Section 3.1(b)(i), Section 3.1(b)(ii) and Section 3.1(b)(iii)), Section 3.1(m), Section 3.1(n), Section 3.1(t), Section 3.1(u) and Section 3.1(v) shall be true and correct in all material respects (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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_31 | 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.
<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 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. (Page 81)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (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 <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. (Page 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: <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), Section 4.2(a) (Capital Structure), 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 Section 4.2(a) and 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 81)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (a) Representations and Warranties of the Company. (i) The representations and warranties of the Company set forth in <omitted> Section 4.2(a) (Capital Structure), the third and fifth sentences of Section 4.2(b) (Capital Structure) <omitted> shall have been true and correct <omitted> (except, with respect to Section 4.2(a) and the third and fifth sentences of Section 4.2(b), for any De Minimis Inaccuracies) <omitted> (Page 81)
4.3 Authority; No Violations; Consents and Approvals
<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
”).
<omitted>
4.6
Absence of Certain Changes or Events
.
(a)
Since December 31, 2019, there has not been any Company Material Adverse Effect or any event, change, effect or development that,
individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect.
<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 (Organization, Standing and Power), Section 4.2(a) (Capital Structure), 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 Section 4.2(a) and 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 81)
4.2 Capital Structure
<omitted>
All outstanding shares of capital stock or other
equity interests 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
<omitted>
This Agreement <omitted>
constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms
<omitted>
4.6
Absence of Certain Changes or Events.
(a)
Since December 31, 2019, there has not been any Company Material Adverse Effect or any event, change, effect or development that,
individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect.
<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 (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 <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 81) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, No MAE | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_96 | Section 6.2 Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any and all of which may be waived, in whole or in part, by Parent to the extent permitted by applicable Law:
(a) Representations and Warranties. <omitted>
(iv) the representations and warranties of the Company set forth in ARTICLE III (other than those described in clauses (i), (ii) and (iii) above) 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 where the failure of such representations and warranties described in this clause (iv) to be so true and correct (without giving effect to any qualification as to materiality, Company Material Adverse Effect or similar qualification set forth therein), individually or in the aggregate, has not had, and would not reasonably be expected to have, 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 63)
Section 6.2 Conditions to Obligations of Parent and Merger Sub.
<omitted>
(iv) the representations and warranties of the Company set forth in ARTICLE III <omitted> shall be true and correct <omitted> , except where the failure of such representations and warranties described <omitted> to be so true and correct <omitted> individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect. (Page 63)
Section 6.2 Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any and all of which may be waived, in whole or in part, by Parent to the extent permitted by applicable Law:
(a) Representations and Warranties. <omitted>
(i) The representations and warranties of the Company set forth in the second sentence of Section 3.2(a) and Section 3.2(c) (Capital Stock) 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 for de minimis inaccuracies, (Page 63)
Section 6.2 Conditions to Obligations of Parent and Merger Sub.
<omitted>
(i) The representations and warranties of the Company set forth in the second sentence of Section 3.2(a) and Section 3.2(c) (Capital Stock) shall be true and correct <omitted> , except for de minimis inaccuracies, (Page 63)
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 the other parties) 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 in effect) and (ii) is subject to general principles of equity (the “Enforceability Limitations”).
<omitted>
(b)
The Company Board, at a meeting duly called and held, duly and unanimously adopted resolutions (i) approving this Agreement, the
Merger and the other Transactions
<omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any and all of which may be waived, in whole or in part, by Parent to the extent permitted by applicable Law: (a) Representations and Warranties . (i) The representations and warranties of the Company set forth in <omitted> Section 3.2(c) (Capital Stock) 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 for de minimis inaccuracies, (ii) the representation and warranty of the Company set forth in Section 3.8(b) (Absence of Certain Changes or Events) shall be true and correct in all respects both when made and at and as of the Closing Date, as if made at and as of such time, (iii) the representations and warranties of the Company set forth in the third sentence of Section 3.1(a), in respect of the Company and the Company Insurance Subsidiaries, Section 3.1(c) in respect of the Company (Organization, Standing and Power; Subsidiaries), Section 3.3 (Authority), Section 3.22 (Brokers), Section 3.23 (Takeover Statutes) and Section 3.24 (Fairness Opinion) 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) (without giving effect to any qualification as to materiality, Company Material Adverse Effect or similar qualification set forth therein) (Page 63)
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 the other parties) 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 in effect) and (ii) is subject to general principles of equity (the “Enforceability Limitations”).
<omitted>
(b)
The Company Board, at a meeting duly called and held, duly and unanimously adopted resolutions (i) approving this Agreement, the
Merger and the other Transactions
<omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in <omitted> Section 3.2(c) (Capital Stock) shall be true and correct <omitted> except for de minimis inaccuracies, (ii) the representation and warranty of the Company set forth in Section 3.8(b) (Absence of Certain Changes or Events) shall be true and correct in all respects <omitted> (iii) the representations and warranties of the Company set forth in the third sentence of Section 3.1(a), in respect of the Company and the Company Insurance Subsidiaries, Section 3.1(c) in respect of the Company (Organization, Standing and Power; Subsidiaries), Section 3.3 (Authority), Section 3.22 (Brokers), Section 3.23 (Takeover Statutes) and Section 3.24 (Fairness Opinion) shall be true and correct in all material respects (Page 63) | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_45 | 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 <omitted> (iii) set forth in Article III (other than those described in the foregoing clauses (i) and (ii)) shall be true and correct in all respects (disregarding all materiality and “Company Material Adverse Effect” qualifiers contained therein, other than as such qualifiers are used in Section 3.10 (Absence of Certain Changes)) as of the date hereof and as of the Closing as if made on and as of the Closing (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 of such representations and warranties to be so true and correct has not had a Company Material Adverse Effect. (Page 86)
Section 8.2 Conditions to Obligations of Parent and Merger Sub. <omitted> The representations and warranties of the Company <omitted> (iii) set forth in Article III (other than those described in the foregoing clauses (i) and (ii)) shall be true and correct in all respects <omitted> except in the case of this clause (iii) where the failure of such representations and warranties to be so true and correct has not had a Company Material Adverse Effect. (Page 86)
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) set forth in Section 3.5(a) (Capitalization) <omitted> shall be true and correct in all respects, except for de minimis inaccuracies therein, as of the date hereof and as of the Closing as if made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such earlier date) (Page 86)
Section 8.2 Conditions to Obligations of Parent and Merger Sub. <omitted> The representations and warranties of the Company (i) set forth in Section 3.5(a) (Capitalization) <omitted> shall be true and correct in all respects, except for de minimis inaccuracies therein (Page 86)
Section 3.2 Corporate Authorization.
(a) <omitted> This Agreement, 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 3.5 Capitalization. <omitted>
(b) <omitted> there are no issued, reserved for issuance or outstanding <omitted> (iii) options, warrants, calls, redeemable, exercisable or exchangeable securities, rights, agreements, commitments or other understandings of any character to acquire from the Company, or other obligation of the Company to issue, any shares of capital stock or other voting securities of or other ownership interests in the Company (including any stockholder rights plan (or similar plan commonly referred to as a “poison pill”))
<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) set forth in <omitted> Section 3.5(b) (Capitalization) shall be true and correct in all respects, except for de minimis inaccuracies therein, as of the date hereof and as of the Closing as if made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (ii) set forth in the first two sentences of Section 3.1 (Corporate Existence and Power), Section 3.2(a) (Corporate Authorization), Section 3.5(c) (Capitalization), Section 3.23 (Finders’ Fee, etc.) and Section 3.25 (Antitakeover Statutes) (collectively, the “Company Fundamental Representations”), to the extent qualified by materiality or “Company Material Adverse Effect”, shall be true and correct in all respects as of the date hereof and as of the Closing as if made on and as of the Closing, and all Company Fundamental Representations, to the extent not qualified by materiality or “Company Material Adverse Effect”, shall be true and correct in all material respects as of the date hereof and as of the Closing as if made on and as of the Closing (in each case of this clause (ii), except to the extent any such Company Fundamental Representations are expressly made as of an earlier date, in which case as of such earlier date) (Page 86)
Section 3.2 Corporate Authorization.
(a) <omitted> This Agreement, 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 3.5 Capitalization. <omitted>
(b) <omitted> there are no issued, reserved for issuance or outstanding <omitted> (iii) options, warrants, calls, redeemable, exercisable or exchangeable securities, rights, agreements, commitments or other understandings of any character to acquire from the Company, or other obligation of the Company to issue, any shares of capital stock or other voting securities of or other ownership interests in the Company (including any stockholder rights plan (or similar plan commonly referred to as a “poison pill”))
<omitted>
Section 8.2 Conditions to Obligations of Parent and Merger Sub. <omitted> The representations and warranties of the Company (i) set forth in Section <omitted> Section 3.5(b) (Capitalization) shall be true and correct in all respects, except for de minimis inaccuracies therein <omitted> , (ii) set forth in the first two sentences of Section 3.1 (Corporate Existence and Power), Section 3.2(a) (Corporate Authorization), Section 3.5(c) (Capitalization), Section 3.23 (Finders’ Fee, etc.) and Section 3.25 (Antitakeover Statutes) (collectively, the “Company Fundamental Representations”), to the extent qualified by materiality or “Company Material Adverse Effect”, shall be true and correct in all respects <omitted> , and all Company Fundamental Representations, to the extent not qualified by materiality or “Company Material Adverse Effect”, shall be true and correct in all material respects (Page 86) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Takeover Statutes, Rights Agreement | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_77 | Section 3.2 Capitalization. <omitted> (d) <omitted> KTYB owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the KTYB Subsidiaries, <omitted>
Section 3.3 Authority; No Violation. <omitted> The execution and delivery of this Agreement and the consummation of the Merger and the Bank Merger have been duly and validly approved by the Board of Directors of KTYB. <omitted> This Agreement has been duly and validly executed and delivered by KTYB and (assuming due authorization, execution and delivery by SYBT) constitutes a valid and binding obligation of KTYB, enforceable against KTYB in accordance with its terms <omitted>
Section 6.2 Conditions to Obligations of SYBT and Merger Subsidiary. The obligation of SYBT and Merger Subsidiary to effect the Merger is also subject to the satisfaction, or waiver by SYBT, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. Other than the representations and warranties of KTYB set forth in Section 3.1 (Corporate Organization), Section 3.2 (Capitalization), Section 3.3 (Authority; No Violation), and Section 3.7 (Broker’s Fees), the representations and warranties of KTYB contained in this Agreement (considered individually and collectively) 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) on and as of the date of this Agreement and on 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 to the date of this Agreement or another date shall be true and correct as of the spoken date). The representations and warranties of KTYB set forth in Section 3.1 (Corporate Organization), Section 3.2 (Capitalization), Section 3.3 (Authority; No Violation), and Section 3.7 (Broker’s Fees) shall be true in all respects on and as of the date of this Agreement and on 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 to the date of this Agreement or another date shall be true and correct as of the date spoken). (Page 50) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Subsidiaries, Brokers' Fee, No-Conflict | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_0 | 2.1. Organization. Standing and Power: Subsidiaries. <omitted>
2.2. Capital Structure. <omitted>
2.3. Authority: Non-contravention. <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the other parties hereto, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Applicable Legal Requirements governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”). The Company Board, by resolutions duly adopted on or prior to the Agreement Date (and, subject to Section 5.3, not thereafter modified or rescinded in a manner adverse to Parent) by the unanimous vote of the members of the Company Board participating in such vote, has (i) approved this Agreement and the Merger, (ii) determined that the Merger and the terms and
19
conditions of this Agreement are fair to, advisable and in the best interests of the Company and the Company’s stockholders and (iii) directed that the adoption of this Agreement be submitted to the Company’s stockholders for consideration and recommended that all of the Company’s stockholders adopt this Agreement. Subject to the accuracy of the representation set forth in Section 3.4, the affirmative vote of the Company’s stockholders holding a majority of all shares of Company Common Stock issued and outstanding on the record date set for the determination of stockholders entitled to vote on such matter at the Company Stockholder Meeting (such affirmative vote, the “Company Stockholder Approvat’) is the only vote of the Company’s stockholders necessary to adopt this Agreement under Applicable Legal Requirements and the Company’s certificate of incorporation and bylaws.
(b) The execution and delivery of this Agreement by the Company does not, and the consummation of the Merger and the other Transactions will not (assuming the accuracy of the representation set forth in Section 3.4, receipt of the Company Stockholder Approval and compliance with the requirements set forth in Section 2.3(c)) (i) result in the creation of any Encumbrance, other than Permitted Encumbrances, on any of the material properties or assets of the Company and the Subsidiaries, taken as a whole, or (ii) conflict with, or result in any violation of or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit under, or require any consent, approval or waiver from any Person pursuant to, (A) any provision of the certificate of incorporation or bylaws or other equivalent organizational or governing documents of the Company or any Subsidiary, in each case as amended to date, (B) any Applicable Legal Requirement or (C) any Material Contract, other than, in the case of clauses (i), (ii)(B) and (ii)(C) of this Section 2.3(b), such conflicts, violations, defaults, Encumbrances, terminations, cancellations, accelerations, losses, consents, approvals or waivers as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. <omitted>
2.15. Brokers’ and Advisors’ Fees. <omitted>
2.19. Fairness Opinion. <omitted>
6.3. Additional Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by Parent (it being understood that each such condition is solely for the benefit of Parent and may be waived by Parent in its sole discretion without notice, liability or obligation to any Person): 69
(a) Representations and Warranties. (i) The representations and warranties of the Company in the first sentence of Section 2.1(a), Section 2.2(a), Section 2.3, Section 2.15, Section 2.19 and Section 2.20 shall be true and correct in all material respects on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be true and correct with respect to such specified date) and (ii) the representations and warranties of the Company in Section 2.3(b) and Section 2.3(c), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification, shall be true and correct on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be true and correct with respect to such specified date), except where the circumstances causing the failure of such representations or warranties to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (Pages 75-76) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee, Opinion of Financial Advisor, No-Conflict | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_82 | 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. <omitted> (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. (Page 51)
Section 6.2 Additional Parent and Merger Subsidiary Conditions. <omitted> (iii) The representations and warranties of the Company set forth in this Agreement <omitted> , 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, (Page 51)
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 3.2(b) (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 (i) for any de minimis inaccuracies 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 de minimis inaccuracies); (Page 51)
Section 6.2 Additional Parent and Merger Subsidiary Conditions. <omitted> (b) Accuracy of Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 3.2(a) and 3.2(b) (the “Capitalization Representations”) shall be true and correct <omitted> , except (i) for any de minimis inaccuracies (Page 51)
Section 3.1 Organization.
<omitted>
Section 3.2 Capitalization
<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).
(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 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 3.2(b) (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 (i) for any de minimis inaccuracies 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 de minimis inaccuracies);
(ii) The representations and warranties of the Company set forth in Section 3.1, 3.3(a), 3.3(b), 3.3(e) and 3.8 (the “Fundamental Representations”) shall be true and correct in all material respects 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 in all material respects as of such particular date); (Page 51)
Section 3.1 Organization.
<omitted>
Section 3.2 Capitalization
<omitted>
Section 3.3 Authorization; No Conflict.
(a) <omitted>
this Agreement constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms
<omitted>
(b) The Company Board, by resolutions adopted at a meeting duly called and held, has unanimously <omitted> (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 6.2 Additional Parent and Merger Subsidiary Conditions. <omitted>
(i) The representations and warranties of the Company set forth in Section 3.2(a) and 3.2(b) (the “Capitalization Representations”) shall be true and correct <omitted> except (i) for any de minimis inaccuracies <omitted>
(ii) The representations and warranties of the Company set forth in Section 3.1, 3.3(a), 3.3(b), 3.3(e) and 3.8 (the “Fundamental Representations”) shall be true and correct in all material respects (Page 51) | Capitalization-Other, Authority, Approval, Enforceability, Organization, Brokers' Fee | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
main | contract_49 | 7.3 Conditions to the Obligations of the Parent and the Merger Sub. The obligation of the Parent and the Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by the Parent (on behalf of the Parent and the Merger Sub), on or prior to the Closing Date of the following conditions:
(a) <omitted> (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct 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 <omitted>
correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties) is not reasonably likely to have a Company Material Adverse Effect; (Pages 48-49)
7.3 Conditions to the Obligations of the Parent and the Merger Sub.
<omitted>
(a) <omitted> (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct <omitted> except where the failure of such representations or warranties to be true and <omitted>
correct <omitted> is not reasonably likely to have a Company Material Adverse Effect; (Pages 48-49)
3.2 Capitalization. <omitted>
7.3 Conditions to the Obligations of the Parent and the Merger Sub. The obligation of the Parent and the Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by the Parent (on behalf of the Parent and the Merger Sub), on or prior to the Closing Date of the following conditions:
(a) <omitted> (ii) the representations and warranties of the Company contained in Sections 3.2(a), the first sentence of 3.2(b) and 3.2(c) shall be true and correct in all respects 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 in all material respects as of such date), except for any de minimis exceptions; (Page 48)
3.2 Capitalization. <omitted>
7.3 Conditions to the Obligations of the Parent and the Merger Sub.
<omitted>
(a) <omitted> (ii) the representations and warranties of the Company contained in Sections 3.2(a), the first sentence of 3.2(b) and 3.2(c) shall be true and correct in all respects 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 in all material respects as of such date), except for any de minimis exceptions; (Page 48)
3.1 Organization, Standing and Power. <omitted>
3.2 Capitalization. <omitted>
(d) <omitted> Except as contemplated
by this
Agreement or described in Section 3.2(a) or Section 3.2(b) of
the Company Disclosure Schedule, and except to the extent arising pursuant to
applicable state takeover or similar laws, there are no registration
rights, and there is no rights agreement, “poison pill” anti-takeover
plan or
other similar agreement to which the Company or any of its Subsidiaries is a party or by which it
or they are bound with respect to any equity
security of any class of
the Company
<omitted>
3.4 Authority; No Conflict; Required Filings and Consents. <omitted>
The Company Board, at a meeting duly called and held, by the 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 on the terms and subject to the conditions set forth herein, (ii) approving and declaring the advisability of this Agreement, the Merger and the other transactions contemplated by this Agreement, <omitted>
This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and the Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, <omitted>
3.7 Absence of Certain Changes or Events. <omitted>
3.19 Opinion of Financial Advisor. <omitted>
3.21 Brokers. <omitted>
7.3 Conditions to the Obligations of the Parent and the Merger Sub. The obligation of the Parent and the Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by the Parent (on behalf of the Parent and the Merger Sub), on or prior to the Closing Date of the following conditions:
(a) (i) the representations and warranties of the Company contained in Section 3.7(a) shall be true and correct in all respects 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 Sections 3.2(a), the first sentence of 3.2(b) and 3.2(c) shall be true and correct in all respects 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 in all material respects as of such date), except for any de minimis exceptions; (iii) the representations and warranties of the Company contained in Sections 3.1(a), 3.2(d), 3.2(e), 3.2(f), 3.4(a), 3.19 and 3.21 shall be true and correct in all material respects 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 in all material respects as of such date); and (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct 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 44
correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties) is not reasonably likely to have a Company Material Adverse Effect; (Pages 48-49)
3.1 Organization, Standing and Power. <omitted>
3.2 Capitalization. <omitted>
(d) <omitted> Except as contemplated
by this
Agreement or described in Section 3.2(a) or Section 3.2(b) of
the Company Disclosure Schedule, and except to the extent arising pursuant to
applicable state takeover or similar laws, there are no registration
rights, and there is no rights agreement, “poison pill” anti-takeover
plan or
other similar agreement to which the Company or any of its Subsidiaries is a party or by which it
or they are bound with respect to any equity
security of any class of
the Company
<omitted>
3.4 Authority; No Conflict; Required Filings and Consents. <omitted>
The Company Board, at a meeting duly called and held, by the vote of all directors, duly adopted resolutions <omitted> (ii) approving and declaring the advisability of this Agreement, the Merger and the other transactions contemplated by this Agreement, <omitted>
This Agreement <omitted> constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, <omitted>
3.7 Absence of Certain Changes or Events. <omitted>
3.19 Opinion of Financial Advisor. <omitted>
3.21 Brokers. <omitted>
7.3 Conditions to the Obligations of the Parent and the Merger Sub. <omitted>
(a) (i) the representations and warranties of the Company contained in Section 3.7(a) shall be true and correct in all respects <omitted> (iii) the representations and warranties of the Company contained in Sections 3.1(a), 3.2(d), 3.2(e), 3.2(f), 3.4(a), 3.19 and 3.21 shall be true and correct in all material respects (Pages 48-49) | Capitalization-Other, Authority, Approval, Enforceability, Organization, No MAE, Brokers' Fee, Rights Agreement, Opinion of Financial Advisor | 1 | Accuracy of Fundamental Target R&Ws-Types of R&Ws | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | 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 | Organization | Accuracy of Target R&W Closing Condition | 10-8 | Conditions to Closing |
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