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main | contract_65 | Section 5.02 Corporate Authorization; Stockholder Support. <omitted> The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by each of Parent and Merger Sub, this Agreement constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> (b) At a meeting duly called and held, the Board of Directors has unanimously <omitted> (ii) approved, adopted and declared advisable this Agreement and the Transactions, including the Offer and the Merger <omitted>
Section 5.10 Absence of Certain Changes. Since the Company Balance Sheet Date through the date hereof, <omitted> (b) there has not been any Company Material Adverse Effect <omitted>
Notwithstanding any other provision of the Offer, but subject to the terms of this Agreement, Merger Sub shall not be required pursuant to Section 2.01(e) or otherwise to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the 1934 Act, pay for, and may delay the acceptance for payment of, or (subject to any such rules and regulations) the payment for, any tendered Shares unless all of the following conditions have been satisfied: <omitted> (C) (i) the representations and warranties of the Company set forth in Section 5.01 (Corporate Existence and Power), Section 5.02 (Corporate Authorization), the first sentence of Section 5.05(b) (Capitalization), Section 5.23 (Finders’ Fees), Section 5.24 (Opinion of Financial Advisor) and Section 5.25 (Antitakeover Statutes) shall be true and correct in all material respects at and as of the Acceptance Time as if made on and as of the Acceptance Time (except to the extent that any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (ii) the representations and warranties of the Company set forth in the first, second and fourth sentences of Section 5.05(a) of this Agreement shall be true and correct in all respects (except for de minimis inaccuracies) at and as of the Acceptance Time as if made on and as of the Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period); (iii) the representation and warranty of the Company set forth in Section 5.10(b) shall be true and correct in all respects; and (iv) the representations and warranties of the Company set forth in this Agreement (other than those referred to in clauses (i) through (iii) above) shall be true and correct (disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) at and as of the Acceptance Time as if made on and as of the Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 40) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_129 | 3.1 Corporate Organization. <omitted>
3.2 Capitalization. <omitted> (b) Sterling owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Sterling Subsidiaries <omitted>
3.3 Authority; No Violation. <omitted> The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including the Merger and the Bank Merger) have been duly and validly approved by the Board of Directors of Sterling <omitted> This Agreement has been duly and validly executed and delivered by Sterling and (assuming due authorization, execution and delivery by Webster) constitutes a valid and binding obligation of Sterling, enforceable against Sterling in accordance with its terms <omitted>
3.7 Broker’s Fees. <omitted>
3.8 Absence of Certain Changes or Events. <omitted>
7.2 Conditions to Obligations of Webster. The obligation of Webster to effect the Merger is also subject to the satisfaction or waiver by Webster at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. The representations and warranties of Sterling set forth in Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of another date, in which case as of such date), and the representations and warranties of Sterling set forth in Sections 3.1(a), 3.1(b) (with respect to Significant Subsidiaries only), 3.2(b) (with respect to Significant Subsidiaries only), 3.3(a) and 3.7 (in each case, read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of another date, in which case as of such date). All other representations and warranties of Sterling set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of another date, in which case as of such date); provided, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on Sterling or the Surviving Corporation. (Page 36) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_60 | 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Closing of the following additional conditions: <omitted> (a) Representations and Warranties. <omitted> (iv) the other representations and warranties of the Company set forth in Section 5.1 shall be true and correct at the date hereof and the Closing (in each case except to the extent that any such representation and warranty speaks as of a particular date, in which case such representation and warranty shall be true and correct as of such earlier date); provided, that notwithstanding anything herein to the contrary, the condition set forth in this Section 7.2(a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct unless the failure of such representations and warranties of the Company to be so true and correct (read for purposes of this Section 7.2(a)(iv) without any materiality, Company Material Adverse Effect or similar qualification), individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect and (Page 77)
7.2 Conditions to Obligations of Parent and Merger Sub. <omitted>
(iv) the other representations and warranties of the Company set forth in Section 5.1 shall be true and correct <omitted> ; provided
<omitted> the condition set forth in this Section 7.2(a)(iv) shall be deemed to have been satisfied <omitted> unless the failure of such representations and warranties of the Company to be so true and correct <omitted> has had or would reasonably be expected to have a Company Material Adverse Effect and (Page 77)
7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Closing of the following additional conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Sections 5.1(b)(i), 5.1(b)(ii) <omitted> (Equity Capital Structure) <omitted> solely as it relates to the Company and not the Company’s Subsidiaries) and the first sentence of Section 5.1(c) (Corporate Authority and Approval; Financial Advisor Opinion) shall each be true and correct, subject only to de minimis inaccuracies at the date hereof and the Closing (in each case except to the extent that any such <omitted>
representation and warranty speaks as of a particular date, in which case such representation and warranty shall be true and correct, subject only to de minimis inaccuracies, as of such earlier date) (Pages 76-77)
7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in Sections 5.1(b)(i), 5.1(b)(ii) <omitted> (Equity Capital Structure) <omitted> shall each be true and correct, subject only to de minimis inaccuracies (Pages 76-77)
5.1
Representations and Warranties of the Company.
<omitted>
(b) Equity Capital Structure <omitted>
(iii) <omitted>
Each of the outstanding shares of capital stock or other
securities of each of the Company’s Subsidiaries has been duly authorized and validly issued and is fully paid and nonassessable, was issued in accordance with applicable Law, was not issued in violation of any preemptive or other similar rights and is owned by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Liens, except for (x) Permitted Liens of the types described in clauses (A), (K) and (L) of the definition thereof and (y) Liens arising under applicable
securities Laws
<omitted>
(c) Corporate Authority and Approval; Financial Advisor Opinion.
<omitted>
This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”).
<omitted>
7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Closing of the following additional conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Sections <omitted> 5.1(b)(iii) (Equity Capital Structure) (in the case of Section 5.1(b)(iii), solely as it relates to the Company and not the Company’s Subsidiaries) and the first sentence of Section 5.1(c) (Corporate Authority and Approval; Financial Advisor Opinion) shall each be true and correct, subject only to de minimis inaccuracies at the date hereof and the Closing (in each case except to the extent that any such <omitted>
representation and warranty speaks as of a particular date, in which case such representation and warranty shall be true and correct, subject only to de minimis inaccuracies, as of such earlier date), (ii) the representation and warranty of the Company set forth in Section 5.1(f)(i) (Absence of Certain Changes) and Section 5.1(r) (Asset Management Agreement) shall be true and correct in all respects at the date hereof and the Closing, (iii) the representations and warranties of the Company set forth in the second and third sentence of Section 5.1(c) (Corporate Authority and Approval; Financial Advisor Opinion) and Section 5.1(s) (Brokers) shall be true and correct in all material respects, in each case, at the date hereof and the Closing (in each case except to the extent that such representation and warranty speaks as of a particular date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date) (Pages 76-77)
5.1
Representations and Warranties of the Company.
<omitted>
(b) Equity Capital Structure <omitted>
(iii) <omitted>
Each of the outstanding shares of capital stock or other
securities of each of the Company’s Subsidiaries <omitted> is owned by the Company or by a direct or indirect wholly owned Subsidiary of the Company,
<omitted>
(c) Corporate Authority and Approval; Financial Advisor Opinion.
<omitted>
This Agreement <omitted> constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms,
<omitted>
7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in Sections <omitted> 5.1(b)(iii) (Equity Capital Structure) (in the case of Section 5.1(b)(iii), solely as it relates to the Company and not the Company’s Subsidiaries) and the first sentence of Section 5.1(c) (Corporate Authority and Approval; Financial Advisor Opinion) shall each be true and correct, subject only to de minimis inaccuracies <omitted> (ii) the representation and warranty of the Company set forth in Section 5.1(f)(i) (Absence of Certain Changes) and Section 5.1(r) (Asset Management Agreement) shall be true and correct in all respects <omitted> (iii) the representations and warranties of the Company set forth in the second and third sentence of Section 5.1(c) (Corporate Authority and Approval; Financial Advisor Opinion) and Section 5.1(s) (Brokers) shall be true and correct in all material respects, (Pages 76-77) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_139 | Section 4.1. Qualification, Organization, Subsidiaries, etc. <omitted>
(c) All of the issued and outstanding shares of capital stock of, or other equity interests in, each Company Subsidiary have been validly issued and are fully paid and nonassessable and are wholly owned, directly or indirectly, by the Company free and clear of all Liens, other than Permitted Liens <omitted> .
Section 4.2. Capitalization. <omitted>
(d) There are no voting trusts or other agreements, commitments or understandings to which the Company or any Company Subsidiary (or to the Company’s Knowledge as of the date hereof, a Company Stockholder) is a party with respect to the voting of the capital stock or other equity interests of the Company. <omitted> .
Section 4.3. Corporate Authority.
(a) <omitted> On or prior to the date hereof, the Company Board of Directors has unanimously <omitted> (iii) approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Merger and the other Transactions upon the terms and subject to the conditions contained herein, <omitted>
(b) This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted>
Section 4.8. Absence of Certain Changes or Events. <omitted>
Section 4.22. Opinion of Financial Advisor. <omitted>
Section 4.23. State Takeover Statutes; Anti-Takeover Laws. <omitted> The Company has no rights plan, “poison-pill” or other comparable agreement in effect. <omitted>
Section 4.26. Finders and Brokers <omitted>
Section 8.2. Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by Parent or Merger Sub:
(a) Representations and Warranties. (i) The representations and warranties of the Company set forth in the first and final sentences of Section 4.1(a), the first sentence of Section 4.1(c), Section 4.2(c), Section 4.2(d) (other than the second sentence thereof), Section 4.3, Section 4.22, Section 4.23 and Section 4.26 shall be true and correct in all material respects as of the date hereof and shall be true and correct in all material respects as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); (ii) the representations and warranties of the Company set forth in Section 4.2(a) and Section 4.2(b), shall be true and correct other than for de minimis inaccuracies as of the date hereof and shall be true and correct other than for de minimis inaccuracies as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); (iii) the representations and warranties of the Company set forth in Section 4.8(a) shall be true and correct in all respects as of the date hereof and shall be true and correct in all respects as of the Closing as though made on and as of the Closing; and (iv) the other representations and warranties of the Company set forth in this Agreement (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) shall be true and correct as of the date hereof and shall be true and correct as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date), except, with respect to this clause (iv), where any failures of any such representations and warranties to be true and correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 73) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_119 | 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 4.22. 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 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_9 | Conditions to the Offer <omitted>
Notwithstanding any other term of the Offer or this Agreement to the contrary, 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-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: (i) if this Agreement has been terminated in accordance with Article VII; or (ii) at any scheduled Expiration Date (as it may have been extended pursuant to Section 1.1(d) of this Agreement), if (x) the condition in clause (a) below has not been satisfied by one minute after 11:59 p.m., New York City time, on the Expiration Date or (y) any of the additional conditions set forth below shall not be satisfied or waived in writing by Parent: <omitted>
(c) (i) other than the representations and warranties listed in Sections (c)(ii) and (c)(iii) in this Annex I, each of the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct (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”) as of the Offer Acceptance Time as if made at and as of the Offer Acceptance Time (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 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 41)
Conditions to the Offer <omitted>
(c) (i) other than the representations and warranties listed in Sections (c)(ii) and (c)(iii) in this Annex I, each of the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct <omitted> 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 41)
Section 3.3. Capitalization. <omitted>
Conditions to the Offer <omitted>
Notwithstanding any other term of the Offer or this Agreement to the contrary, 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-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: (i) if this Agreement has been terminated in accordance with Article VII; or (ii) at any scheduled Expiration Date (as it may have been extended pursuant to Section 1.1(d) of this Agreement), if (x) the condition in clause (a) below has not been satisfied by one minute after 11:59 p.m., New York City time, on the Expiration Date or (y) any of the additional conditions set forth below shall not be satisfied or waived in writing by Parent: <omitted>
(ii) each of the representations and warranties of the Company set forth in Section 3.3(a), Section 3.3(b), Section 3.3(d) and Section 3.7(b) shall be true and correct as of the Offer Acceptance Time as if made at and as of the Offer Acceptance Time (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 (x) Section 3.3(a) and Section 3.3(b), for inaccuracies that are de minimis and (y) Section 3.3(d), for inaccuracies as would not result in an increase of the aggregate cash amounts payable with respect to the Company Equity Awards other than any such increases that are de minimis relative to the aggregate Merger Consideration payable pursuant to this Agreement or the amounts payable pursuant to Section 2.8; (Page 41)
Section 3.3. Capitalization. <omitted>
Conditions to the Offer <omitted>
(ii) each of the representations and warranties of the Company set forth in Section 3.3(a), <omitted> shall be true and correct as of the Offer Acceptance Time as if made at and as of the Offer Acceptance Time (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 (x) Section 3.3(a) <omitted> for inaccuracies that are de minimis (Page 41)
Section 3.1. Organization and Power. <omitted>
Section 3.2. Subsidiaries. <omitted>
Section 3.3. Capitalization. <omitted>
Section 3.4. Authority. <omitted>
(b) 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, <omitted>
The Company Board, acting upon the Special Committee Recommendation, has (i) declared this Agreement, and the transactions contemplated by this Agreement, including the Merger and the Offer, advisable, (ii) approved and adopted this Agreement and the transactions contemplated by this Agreement, including the Merger and the Offer, <omitted>
Prior to the execution of the Original Agreement, the Special Committee received an oral opinion (confirmed by the delivery of a written opinion, dated as of May 6, 2021, following the execution of the Original Agreement) of Goldman Sachs & Co. LLC, the Special Committee’s financial advisor (the “Special Committee Financial Advisor”), to the effect that the Merger Consideration (as defined in the Original Agreement) to be received by holders of Shares pursuant to the Original Agreement was fair, from a financial point of view, to such holders as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth in such written opinion.
Section 3.7. Absence of Certain Changes or Events. <omitted>
Section 3.19. Brokers. <omitted>
Section 3.20. Takeover Statutes Not Applicable; No Rights Plan. <omitted>
Conditions to the Offer <omitted>
Notwithstanding any other term of the Offer or this Agreement to the contrary, 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-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: (i) if this Agreement has been terminated in accordance with Article VII; or (ii) at any scheduled Expiration Date (as it may have been extended pursuant to Section 1.1(d) of this Agreement), if (x) the condition in clause (a) below has not been satisfied by one minute after 11:59 p.m., New York City time, on the Expiration Date or (y) any of the additional conditions set forth below shall not be satisfied or waived in writing by Parent: <omitted>
(ii) each of the representations and warranties of the Company set forth in <omitted> Section 3.3(b), Section 3.3(d) and Section 3.7(b) shall be true and correct as of the Offer Acceptance Time as if made at and as of the Offer Acceptance Time (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 (x) <omitted> Section 3.3(b), for inaccuracies that are de minimis and (y) Section 3.3(d), for inaccuracies as would not result in an increase of the aggregate cash amounts payable with respect to the Company Equity Awards other than any such increases that are de minimis relative to the aggregate Merger Consideration payable pursuant to this Agreement or the amounts payable pursuant to Section 2.8; and (iii) each of the representations and warranties of the Company set forth in Section 3.1, Section 3.2, Section 3.4, Section 3.19 and Section 3.20 shall be true and correct in all material respects as of the Offer Acceptance Time as if made at and as of the Offer Acceptance Time (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 41)
Conditions to the Offer <omitted>
(ii) each of the representations and warranties of the Company set forth in <omitted> Section 3.3(b), Section 3.3(d) and Section 3.7(b) shall be true and correct <omitted> except, in the case of (x) <omitted> Section 3.3(b), for inaccuracies that are de minimis and (y) Section 3.3(d), for inaccuracies as would not result in an increase of the aggregate cash amounts payable with respect to the Company Equity Awards other than any such increases that are de minimis relative to the aggregate Merger Consideration payable pursuant to this Agreement or the amounts payable pursuant to Section 2.8; and (iii) each of the representations and warranties of the Company set forth in Section 3.1, Section 3.2, Section 3.4, Section 3.19 and Section 3.20 shall be true and correct in all material respects (Page 41) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_2 | Section 4.3 Authority; Binding Nature of Agreement. <omitted> The Company Board has (a) determined that this Agreement and the Transactions, including the Offer and the Merger, are fair to, and in the best interest of, the Company and its stockholders, (b) approved the execution, delivery and performance by the Company of this Agreement and the consummation of the Transactions, (c) resolved that the Merger shall be effected under Section 251(h) of the DGCL and (d) resolved to recommend that the stockholders of the Company tender their shares to Purchaser pursuant to the Offer, which resolutions, as of the Agreement Date, have not been subsequently withdrawn or modified in a manner adverse to Parent. <omitted> CONDITIONS TO THE OFFER
<omitted> The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions set forth in clauses (a) through (h) below. <omitted> (b) (i) the representations and warranties of the Company set forth in Section 4.4(a) and the first sentence of Section 4.4(c) (Capitalization, Etc.) of the Agreement shall have been accurate in all respects other than de minimis inaccuracies as of the date of this Agreement and at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time); (ii) the representations and warranties of the Company set forth in Section 4.1 (Due Organization; Subsidiaries, Etc.) , Section 4.3 (Authority; Binding Nature of Agreement) , Section 4.4 (Capitalization, Etc.) (other than Section 4.4(a) and the first sentence of Section 4.4(c)), and Section 4.26 (Brokers and Other Advisors) of the Agreement shall have been accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all material respects as of the date of this Agreement and at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time); (iii) the representations and warranties of the Company set forth in Section 4.7(a) (Absence of Changes) and Section 4.24 (Merger Approval) shall have been accurate in all respects;
I-1
(iv) all of the other representations and warranties of the Company set forth in the Agreement (other than those referred to in clauses (b)(i), (b)(ii) or (b)(iii) above) shall have been accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all respects as of the date of this Agreement and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time), except where any failure of any representation or warranty to be so accurate has not had, and would not reasonably be expected to have, a Material Adverse Effect; (Page 50) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_14 | 7.2 Conditions to Obligations of SVB Financial. The obligation of SVB Financial to effect the Merger is also subject to the satisfaction, or waiver by SVB Financial, at or prior to the Effective Time, of the following conditions: (a) Representations and Warranties. The representations and warranties of Boston Private set forth in Section 3.2(a) and Section 3.8(a) (in each case after giving effect to the lead in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, and the representations and warranties of Boston Private set forth in Sections 3.1(a), 3.1(b) (with respect to Boston Private Bank only), 3.2(c) (with respect to Boston Private Bank only) and 3.3(a) (in each case, after giving effect to the lead in to Article III) shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date. All other representations and warranties of Boston Private 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 (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing 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 Boston Private or the Surviving Corporation. SVB Financial shall have received a certificate signed on behalf of Boston Private by the Chief Executive Officer and the Chief Financial Officer of Boston Private to the foregoing effect. (Page 77)
7.2 Conditions to Obligations of SVB Financial. <omitted> All other representations and warranties of Boston Private set forth in this Agreement <omitted> shall be true and correct in all respects as of the date of this Agreement <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 Boston Private or the Surviving Corporation. (Page 77)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of SVB Financial. The obligation of SVB Financial to effect the Merger is also subject to the satisfaction, or waiver by SVB Financial, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of Boston Private set forth in Section 3.2(a) and Section 3.8(a) (in each case after giving effect to the lead in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, and the representations and warranties of Boston Private set forth in Sections 3.1(a), 3.1(b) (with respect to Boston Private Bank only), 3.2(c) (with respect to Boston Private Bank only) and 3.3(a) (in each case, after giving effect to the lead in to Article III) shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date (Page 77)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of SVB Financial.
<omitted>
(a) Representations and Warranties. The representations and warranties of Boston Private 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 77)
3.1 Corporate Organization. (a) <omitted>
3.2 Capitalization. <omitted> (c) Except as set forth on Section 3.2(c) of the Boston Private Disclosure Schedule, Boston Private owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Boston Private Subsidiaries, <omitted>
3.3 Authority; No Violation. (a) Boston
Private has full corporate power and authority to execute and deliver
this Agreement and, subject to the shareholder and other
actions described below, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the Merger have been duly and validly approved by the Board of Directors of Boston Private.
<omitted> This Agreement <omitted> constitutes a valid and binding obligation of Boston Private, enforceable against Boston Private <omitted>
3.8 Absence of Certain Changes or Events. (a) Since December 31, 2019, there has not been <omitted> a Material Adverse Effect on Boston Private. <omitted>
7.2
Conditions to Obligations of SVB Financial.
The obligation of SVB
Financial to effect the Merger is also subject to the
satisfaction, or
waiver by SVB Financial, at or prior to the Effective
Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of Boston Private set forth in Section 3.2(a) and Section 3.8(a) (in each case after giving effect to the lead in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, and the representations and warranties of Boston Private set forth in Sections 3.1(a), 3.1(b) (with respect to Boston Private Bank only), 3.2(c) (with respect to Boston Private Bank only) and 3.3(a) (in each case, after giving effect to the lead in to Article III) shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date. (Page 77)
3.1 Corporate Organization. (a) <omitted>
3.2 Capitalization. 3.2 Capitalization. <omitted> (c) Except as set forth on Section 3.2(c) of the Boston Private Disclosure Schedule, Boston Private owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Boston Private Subsidiaries, <omitted>
3.3 Authority; No Violation. (a) Boston
Private has full corporate power and authority to execute and deliver
this Agreement and, subject to the shareholder and other
actions described below, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the Merger have been duly and validly approved by the Board of Directors of Boston Private.
<omitted> This Agreement <omitted> constitutes a valid and binding obligation of Boston Private, enforceable against Boston Private <omitted>
3.8 Absence of Certain Changes or Events. (a) Since December 31, 2019, there has not been <omitted> a Material Adverse Effect on Boston Private. <omitted>
7.2
Conditions to Obligations of SVB Financial.
<omitted>
The representations and warranties of Boston Private set forth in <omitted> Section 3.8(a) <omitted> shall be true and correct <omitted> and the representations and warranties of Boston Private set forth in Sections 3.1(a), 3.1(b) (with respect to Boston Private Bank only), 3.2(c) (with respect to Boston Private Bank only) and 3.3(a) <omitted> shall be true and correct in all material respects (Page 77) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_109 | 7.2 Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Company set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), in each case, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). The representations and warranties of the Company set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Company Bank), Section 3.2(b) (but only with respect to Company 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). All other representations and warranties of Company 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 -60-
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 the Company or the Surviving Entity. Parent shall have received a certificate dated as of the Closing Date and signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company to the foregoing effect. (Pages 68-69)
7.2 Conditions to Obligations of Parent and Merger Sub.
<omitted>
All other representations and warranties of Company set forth in this Agreement <omitted> shall be true and correct <omitted> provided, however, that for purposes of this sentence, such <omitted> 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 the Company or the Surviving Entity. (Pages 68-69)
3.2
Capitalization
.
<omitted>
7.2 Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Company set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), in each case, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). The representations and warranties of the Company set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Company Bank), Section 3.2(b) (but only with respect to Company 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). All other representations and warranties of Company 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 -60-
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 the Company or the Surviving Entity. Parent shall have received a certificate dated as of the Closing Date and signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company to the foregoing effect. (Pages 68-69)
3.2
Capitalization
.
<omitted>
7.2 Conditions to Obligations of Parent and Merger Sub.
<omitted>
The representations and warranties of the Company 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), in each case (Pages 68-69)
3.1 Corporate Organization. (a) <omitted> The Company is duly licensed or qualified to do business and in good standing <omitted> except where the failure to be so licensed or qualified or to be in good standing would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company.
<omitted>
(b) Except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company, each Subsidiary of the Company (a “Company Subsidiary”)
<omitted>
3.2 Capitalization. <omitted>
(b)
The Company owns, directly or indirectly, all of the issued and
outstanding shares of capital stock or other equity ownership
interests of each of the Company Subsidiaries, free and clear of any
liens, claims, title defects, mortgages, pledges, charges, encumbrances
and
security interests whatsoever (“
Liens
”), and all of such
shares or equity ownership interests are duly authorized and validly issued and are fully
paid,
nonassessable (except, with respect to Company Bank, as provided under
12 U.S.C. § 55) and free of preemptive rights, with no personal
liability attaching to the ownership thereof.
<omitted>
3.3 Authority; No Violation. (a) The Company has full corporate power and authority to execute and deliver this Agreement and, subject to the stockholder and other actions described below, to consummate the transactions contemplated hereby. <omitted> This Agreement has been duly and validly 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 in all cases as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws of general applicability relating to or affecting insured depository institutions or their parent companies or the rights of creditors generally and the availability of equitable remedies (the “EnforceabilityExceptions”)).
<omitted>
3.7 Broker’s Fees.
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Company set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), in each case, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). The representations and warranties of the Company set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Company Bank), Section 3.2(b) (but only with respect to Company 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). All other representations and warranties of Company 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 -60-
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 the Company or the Surviving Entity. Parent shall have received a certificate dated as of the Closing Date and signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company to the foregoing effect. (Pages 68-69)
3.1 Corporate Organization. (a) <omitted> The Company is duly licensed or qualified to do business and in good standing <omitted> except where the failure to be so licensed or qualified or to be in good standing would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company.
<omitted>
(b) Except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company, each Subsidiary of the Company (a “Company Subsidiary”)
<omitted>
3.2 Capitalization. <omitted>
(b)
The Company owns, directly or indirectly, all of the issued and
outstanding shares of capital stock or other equity ownership
interests of each of the Company Subsidiaries,
<omitted>
3.3 Authority; No Violation. (a) The Company has full corporate power and authority to execute and deliver this Agreement and, subject to the stockholder and other actions described below, to consummate the transactions contemplated hereby. <omitted> This Agreement has been duly and validly 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 in all cases as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws of general applicability relating to or affecting insured depository institutions or their parent companies or the rights of creditors generally and the availability of equitable remedies (the “EnforceabilityExceptions”)).
<omitted>
3.7 Broker’s Fees.
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of Parent and Merger Sub.
<omitted>
The representations and warranties of the Company set forth in <omitted> Section 3.8(a) <omitted> shall be true and correct <omitted>
The representations and warranties of the Company set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Company Bank), Section 3.2(b) (but only with respect to Company 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 (Pages 68-69) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_78 | Section 4.1. Qualification, Organization, Subsidiaries, etc. (a) Each of the Company and the Company Subsidiaries (i) is a corporation duly organized, validly existing and, where such concept is recognized, in good standing under the Laws of its respective jurisdiction of organization, (ii) has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted <omitted>
Section 4.2. Capitalization <omitted>
Section 4.3. Corporate Authority. <omitted> (i) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Transactions, including the Merger, <omitted> (c)This Agreement <omitted> constitutes the legal, valid and binding agreement of Parent and Merger Sub, constitutes the legal, valid and binding agreement of the Company, enforceable against the company in accordance with its terms <omitted>
Section 4.4. Governmental Consents; No Violation. <omitted>
Section 4.23. Opinion of Financial Advisor. <omitted>
Section 4.24. State Takeover Statutes. <omitted>
Section 4.25. Finders and Brokers.<omitted>
Section 8.2. Conditions to Parent’s and Merger Sub’s Obligations to Effect the Merger. The respective obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 4.2(a), Section 4.2(b) or Section 4.2(e) shall be true and correct in all respects, other than de minimis inaccuracies, as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except for representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, in which case as of such date), (ii) the representations and warranties of the Company set forth in Section 4.1(a), Section 4.3, Section 4.4(a), Section 4.4(b)(ii), Section 4.23, Section 4.24(a) and Section 4.25 shall be true and correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) in all material respects as of the date of this Agreement and as of Closing as though made on and as of the Closing (except for representations and warranties that by their teams speak specifically as of the date of this Agreement or another date, in which case as of such date), (iii) the representations and warranties of the Company set forth in Section 4.8(a) and Section 4.24(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing as though made on and as of the Closing and (iv) each other representation and warranty of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except for representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, in which case as of such date), except, in the case of this clause (iv), where any failures of any such representations and warranties to be true and correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) would not, and would not reasonably be expected to, have individually or in the aggregate, a Company Material Adverse Effect. (Page 28) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_42 | Section 4.02 Corporate Authorization. <omitted> This Agreement hasbeen duly executed and delivered by the Company and, assuming due authorization, execution and delivery by Parent and Merger Sub, constitutes avalid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as such enforceability may belimited by bankruptcy, insolvency, moratorium and other similar Applicable Laws affecting creditors’ rights generally and by general principles of specific performance, injunctive relief and other equitable remedies. (b) At a meeting duly called and held, prior to the execution of this Agreement, the Company Board unanimously duly adopted resolutions (i) determining and declaring that this Agreement, the Merger and the other transactions contemplated by this Agreement (including, for the avoidance of doubt, the Replacement) are advisable and in the best interests of the Company’s stockholders, (ii) approving the execution, delivery and performance of this Agreement, the Merger and the other transactions contemplated by this Agreement, (iii) directing that the adoption of this Agreement be submitted to a vote of the stockholders of the Company at the Stockholder Meeting and (iv) recommending adoption of this Agreement to the stockholders of the Company (the “Company Recommendation”), which resolutions have not been rescinded, modified or withdrawn, except as permitted in Section 6.03. The Company is not party to and does not have in force any stockholder rights agreement or “poison pill” or similar anti-takeover agreement or plan. Assuming that the representations of Parent and Merger Sub set forth in Section 5.10 are true and correct, the Company Board has taken all necessary action so that Section 203 of the DGCL or any similar anti-takeover, moratorium, or “control share” law applicable to the Company does not, and will not, apply to this Agreement or the transactions contemplated hereby. <omitted>
Section 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is subject to the satisfaction or, to the extent permitted by Applicable Law, waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.01 (Organization, Standing and Power) , Section 4.02 (Corporate Authorization), Section 4.23 (Brokers’ Fees) and Section 4.24 (Opinion of Financial Advisor) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (ii) the representations and warranties of the Company set forth in Section 4.05 (Capitalization) shall have been true and correct in all respects other than de minimis inaccuracies therein as of the date of this Agreement and shall be true and correct in all respects other than de minimis inaccuracies therein as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date), (iii) the representations and warranties in clause (b) of Section 4.09 (Absence of Certain Changes) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date and (iv) the representations and warranties of the Company set forth in Article 4 (other than those described in the foregoing clauses (i) through (iii)) shall have been true and correct as of the date of this Agreement and shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct only as of such earlier date); provided, however, that notwithstanding anything in this Agreement to the contrary, the condition set forth in this clause (a)(iv) shall be deemed to have been satisfied even if any representations and warranties of the Company are not so true and correct if the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, have not resulted in a Company Material Adverse Effect; (Page 76) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_1 | Section 4.1. Organization and Corporate Power. <omitted>
Section 4.2. Authorization; Valid and Binding Agreement. <omitted> The Company Board has, at a meeting duly called and held, unanimously (a) determined that this Agreement and the Contemplated Transactions are fair to, and in the best interests of, the Company and the holders of the Shares, (b) declared it advisable to enter into this Agreement, (c) approved the execution and delivery of this Agreement and the performance of the Company’s obligations hereunder,
Section 4.3. Capital Stock. <omitted>
Section 4.5. No Breach. <omitted>
Section 4.9. Absence of Certain Developments. <omitted>
Section 4.23. No Rights Agreement; Takeover Provisions. <omitted>
Section 4.25. Opinion. <omitted>
CONDITIONS TO THE OFFER <omitted>
2. Notwithstanding any other provisions of the Offer, but subject to the terms and conditions set forth in this Agreement, additionally, Purchaser is not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in connection with the Offer if, immediately prior to the then applicable Expiration Date, any of the following conditions exist:
I-1
(a) (i) the Company has breached or failed to comply in any material respect with any of its obligations, agreements or covenants to be performed or complied with by it under the Agreement on or before the Acceptance Time and has not thereafter cured such breach or failure to comply, and such breach or failure to comply has not been waived in writing by Parent or Purchaser, (ii) any of the representations and warranties of the Company contained in the Agreement (other than the representations and warranties set forth in the first sentence of Section 4.1 (Organization and Corporate Power), Section 4.2 (Authorization; Valid and Binding Agreement), Section 4.3(a) – (c) (Capital Stock), Section 4.5(a) (No Breach), the first sentence of Section 4.9 (Absence of Certain Developments), Section 4.23 (No Rights Agreement; Takeover Provisions) and Section 4.25 (Opinion)) and that (x) are not made as of a specific date are not true and correct as of the Expiration Date, as though made on and as of the Expiration Date and (y) are made as of a specific date are not true as of such date, in each case, except, in the case of (x) or (y), where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality,” “in all material respects,” “in any material respect,” “material” or “Company Material Adverse Effect”) has not had, individually or in the aggregate, a Company Material Adverse Effect, (iii) the representations and warranties set forth in the first sentence of Section 4.1 (Organization and Corporate Power), Section 4.2 (Authorization; Valid and Binding Agreement), Section 4.5(a) (No Breach), Section 4.23 (No Rights Agreement; Takeover Provisions) or Section 4.25 (Opinion) are not true and correct in all material respects as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty is not true and correct, in all material respects, as of such earlier date), (iv) the representations and warranties set forth in Section 4.3 (Capital Stock) are not true and correct in all respects, except for de minimis inaccuracies, as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty is not true and correct, except for immaterial inaccuracies, as of such earlier date), or (v) any representations and warranties set forth in the first sentence of Section 4.9 (Absence of Certain Developments) are not true and correct in all respects as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty is not true and correct, in all respects, as of such earlier date); (Page 42) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_66 | Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. The obligations of Parent, Merger Sub and Merger Sub II to effect the Mergers are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the First Effective Time of the following conditions:
(a) Representations and Warranties. <omitted> (iii) the other representations and warranties of the Company contained in Article III shall be true and correct, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except, in the case of this clause (iii), where the failure to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 67)
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted>
(iii) the other representations and warranties of the Company contained in Article III shall be true and correct <omitted> except, in the case of this clause (iii), where the failure to be so true and correct does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 67)
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. The obligations of Parent, Merger Sub and Merger Sub II to effect the Mergers are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the First Effective Time of the following conditions:
(a) Representations and Warranties. <omitted> (ii) Section 3.2(a) <omitted> (Capitalization) shall be true and correct in all respects, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies (taking into account the size of the Company); (Pages 66-67)
(ii) <omitted> Section 3.2(b) (Capitalization) shall be true and correct in all respects, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies (taking into account the size of the Company); (Pages 66-67)
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted>
(ii) Section 3.2(a) <omitted> (Capitalization) shall be true and correct in all respects <omitted> except for any de minimis inaccuracies (taking into account the size of the Company); (Page 67)
Section 3.3 Authority; Noncontravention. <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, <omitted> (c) The Company Board, at a meeting duly called and held, has (i) determined that it is fair to and in the best interest of the Company and the holders of shares of Company Common Stock, and declared it advisable, that the Company enter into this Agreement and consummate the Transactions, including the Mergers; (ii) adopted this Agreement and approved the execution <omitted>
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. The obligations of Parent, Merger Sub and Merger Sub II to effect the Mergers are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the First Effective Time of the following conditions:
(a) Representations and Warranties. Each of the representations and warranties of the Company contained in: (i) Section 3.1(a) (Organization, Standing and Corporate Power), Section 3.3 (Authority; Noncontravention), Section 3.18 (Opinion of Financial Advisor), Section 3.19 (Brokers and Other Advisors) and Section 3.20 (Company Stockholder Approval) shall be true and correct in all material respects, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); (ii) <omitted> Section 3.2(b) (Capitalization) shall be true and correct in all respects, in each case as of the First Effective Time with the same effect as though made on and as of the First Effective Time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies (taking into account the size of the Company); (Pages 66-67)
Section 3.3 Authority; Noncontravention. <omitted> This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, <omitted> (c) The Company Board, at a meeting duly called and held, has (i) determined that it is fair to and in the best interest of the Company and the holders of shares of Company Common Stock, and declared it advisable, that the Company enter into this Agreement and consummate the Transactions, including the Mergers; (ii) adopted this Agreement and approved the execution <omitted>
Section 6.2 Conditions to Obligations of Parent, Merger Sub and Merger Sub II. <omitted> Each of the representations and warranties of the Company contained in: (i) Section 3.1(a) (Organization, Standing and Corporate Power), Section 3.3 (Authority; Noncontravention), Section 3.18 (Opinion of Financial Advisor), Section 3.19 (Brokers and Other Advisors) and Section 3.20 (Company Stockholder Approval) shall be true and correct in all material respects <omitted> ; (ii) <omitted> Section 3.2(b) (Capitalization) shall be true and correct in all respects <omitted> except for any de minimis inaccuracies (taking into account the size of the Company); (Pages 66-67) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_85 | SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligation of Parent and MergerSub to consummate the Merger is further subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions:
(a) Representations and Warranties. <omitted> (ii) each of the other representations and warranties of the Company set forth in Article IV shall be true and correct both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case, as of such date), except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 61)
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. <omitted>
(ii) each of the other representations and warranties of the Company set forth in Article IV shall be true and correct <omitted> except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct <omitted> has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 61)
SECTION 4.3 Capital Structure. <omitted>
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligation of Parent and MergerSub to consummate the Merger is further subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company contained in Section 4.1, Section 4.3(a), Section 4.3(b), Section 4.3(c), Section 4.4, Section 4.5(a)(i), Section 4.8(b) and Section 4.16 shall be true and correct in all material respects, in each case, both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case, as of such date), (Page 61)
SECTION 4.3 Capital Structure. <omitted>
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. <omitted>
(i) The representations and warranties of the Company contained in <omitted> Section 4.3(a), <omitted> shall be true and correct in all material respects, (Page 61)
SECTION 4.1 Organization, Standing and Power. <omitted>
SECTION 4.3 Capital Structure. <omitted>
SECTION 4.4 Authority; Execution and Delivery; Enforceability. (a) <omitted> The Company Board <omitted> has <omitted> (B) approved, adopted and declared advisable this Agreement and the Transactions <omitted>
(b) Anti-Takeover Statutes. <omitted>
SECTION 4.5 No Conflicts; Consents. <omitted>
SECTION 4.8 Absence of Certain Changes or Events. <omitted>
SECTION 4.16 Brokers’ Fees and Expenses. <omitted>
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. The obligation of Parent and MergerSub to consummate the Merger is further subject to the satisfaction or waiver on or prior to the Closing Date of each of the following conditions: (a) Representations and Warranties.
(i) The representations and warranties of the Company contained in Section 4.1, <omitted> Section 4.3(b), Section 4.3(c), Section 4.4, Section 4.5(a)(i), Section 4.8(b) and Section 4.16 shall be true and correct in all material respects, in each case, both when made and at and as of the Closing Date, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case, as of such date), (Page 61)
SECTION 4.1 Organization, Standing and Power. <omitted>
SECTION 4.3 Capital Structure. <omitted>
SECTION 4.4 Authority; Execution and Delivery; Enforceability. (a) <omitted> The Company Board <omitted> has <omitted> (B) approved, adopted and declared advisable this Agreement and the Transactions <omitted>
(b) Anti-Takeover Statutes. <omitted>
SECTION 4.5 No Conflicts; Consents. <omitted>
SECTION 4.8 Absence of Certain Changes or Events. <omitted>
SECTION 4.16 Brokers’ Fees and Expenses. <omitted>
SECTION 7.2 Conditions to Parent’s and Merger Sub’s Obligation to Effect the Merger. <omitted>
(i) The representations and warranties of the Company contained in Section 4.1, <omitted> Section 4.3(b), Section 4.3(c), Section 4.4, Section 4.5(a)(i), Section 4.8(b) and Section 4.16 shall be true and correct in all material respects, (Page 61) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_88 | Section 6.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent) at or prior to the Closing of the following conditions:
(a) Representations and Warranties. (i) Each representation and warranty in Article III (except for the representations and warranties in Section 3.1(a), Section 3.2(a), Section 3.2(b), the first sentence of Section 3.2(d), Section 3.3, Section 3.6(b) and Section 3.22) shall be accurate in all respects (read, for purposes of this Section 6.2(a)(i) only, without any qualification as to “material,” “in all material respects,” “Company Material Adverse Effect” or materiality (provided that dollar thresholds shall not be disregarded)) as of the date hereof and as of the Closing as if made as of the Closing (except to the extent any such representation or warranty expressly speaks as of the date hereof or any other specific date, in which case such representation or warranty shall have been accurate in all respects as of such date), except for any failure of such representations and warranties to be true and correct as would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect (Page 31)
Section 6.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (i) Each representation and warranty in Article III <omitted> shall be accurate in all respects <omitted>, except for any failure of such representations and warranties to be true and correct as would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect (Page 31)
Section 3.2 Company Capitalization.
<omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (iii) each representation and warranty in Section 3.2(a), Section 3.2(b) and the first sentence of Section 3.2(d) shall be accurate in all but de minimis respects as of the date hereof and as of the Closing as if made as of the Closing (except to the extent any such representation or warranty expressly speaks as of the date hereof or any other specific date, in which case such representation or warranty shall have been accurate in all but de minimis respects as of such date) and (iv) each representation and warranty in Section 3.6(b) shall be accurate in all respects as of the date hereof and as of the Closing as if made as of the Closing (except to the extent any such representation or warranty expressly speaks as of the date hereof or any other specific date, in which case such representation or warranty shall have been accurate in all respects as of such date). (Page 31)
Section 3.2 Company Capitalization.
<omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (iii) each representation and warranty in Section 3.2(a), Section 3.2(b) and the first sentence of Section 3.2(d) shall be accurate in all but de minimis respects (Page 31)
Section 3.1 Organization; Good Standing; Corporate Power; Company Subsidiaries.
<omitted>
Section 3.2 Company Capitalization
<omitted> (e) The Company owns of record or Beneficially Owns all of the outstanding Equity Securities in each Company Subsidiary, and all of the outstanding Equity Securities in each Company Subsidiary are owned of record by a Company Entity, in each case, free and clear of any Lien thereon(other than Permitted Liens). <omitted>
Section 3.3 Authority; Execution and Delivery; Enforceability; State Takeover Statutes; No Rights Plan.
<omitted>
Section 3.6 Absence of Certain Changes or Events.
<omitted>
Section 3.22 Broker's Fees.
<omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub. <omitted>
(ii) each representation and warranty in Section 3.1(a), Section 3.3 and Section 3.22 shall be accurate in all material respects as of the date hereof and as of the Closing as if made as of the Closing (except to the extent any such representation or warranty expressly speaks as of the date hereof or any other specific date, in which case such representation or warranty shall have been accurate in all material respects as of such date), (iii) each representation and warranty in <omitted> the first sentence of Section 3.2(d) shall be accurate in all but de minimis respects as of the date hereof and as of the Closing as if made as of the Closing (except to the extent any such representation or warranty expressly speaks as of the date hereof or any other specific date, in which case such representation or warranty shall have been accurate in all but de minimis respects as of such date) and (iv) each representation and warranty in Section 3.6(b) shall be accurate in all respects as of the date hereof and as of the Closing as if made as of the Closing (except to the extent any such representation or warranty expressly speaks as of the date hereof or any other specific date, in which case such representation or warranty shall have been accurate in all respects as of such date). (Page 31)
Section 3.1 Organization; Good Standing; Corporate Power; Company Subsidiaries.
<omitted>
Section 3.2 Company Capitalization.
<omitted> (e) The Company owns of record or Beneficially Owns all of the outstanding Equity Securities in each Company Subsidiary, and all of the outstanding Equity Securities in each Company Subsidiary are owned of record by a Company Entity, in each case, free and clear of any Lien thereon(other than Permitted Liens). <omitted>
Section 3.3 Authority; Execution and Delivery; Enforceability; State Takeover Statutes; No Rights Plan.
<omitted>
Section 3.6 Absence of Certain Changes or Events.
<omitted>
Section 3.22 Broker's Fees.
<omitted>
Section 6.2 Conditions to Obligations of Parent and Merger Sub. <omitted>
(ii) each representation and warranty in Section 3.1(a), Section 3.3 and Section 3.22 shall be accurate in all material respects
<omitted>
(iii) each representation and warranty in <omitted> the first sentence of Section 3.2(d) shall be accurate in all but de minimis respects <omitted>
and (iv) each representation and warranty in Section 3.6(b) shall be accurate in all respects (Page 31) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_138 | Section 9.02. Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) <omitted> (iii) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true in all respects at and as of the date of this Agreement and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), with only such exceptions in 65 the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . <omitted> (b) <omitted> (iii) the other representations and warranties of the Company contained in this Agreement <omitted> shall be true in all respects <omitted> with only such exceptions in the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 4.05. Capitalization. <omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) <omitted> (ii) the representations and warranties of the Company contained in Section 4.05(a) <omitted> shall be true and correct in all respects (other than de minimis inaccuracies) contained therein at and as of the date of this Agreement and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time)
<omitted>
with only such exceptions
in the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 4.05. Capitalization. <omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . <omitted> (b) <omitted> (ii) the representations and warranties of the Company contained in Section 4.05(a) <omitted> shall be true and correct in all respects (other than de minimis inaccuracies)
<omitted>
with only such exceptions
in the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 4.02. Corporate Authorization. (a) <omitted> The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by each of Parent and Merger Sub, this Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted> (b) At a meeting duly called and held, the Board of Directors (upon the unanimous recommendation of the Special Committee) has <omitted> (ii) approved, adopted and declared advisable this Agreement and the transactions contemplated hereby
<omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) (i) the representations and warranties of the Company contained in the first sentence of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(b) (Capitalization) Section 4.06(b) (Subsidiaries) (except for the first sentence thereof), Section 4.23 (Finders’ Fees) and Section 4.24 (Anti-Takeover Statutes) (except in the case of the first sentence of Section 4.01, disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects at and as of the date of this Agreement and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time), (ii) the representations and warranties of the Company contained in Section 4.05(a), Section 4.05(c), the first sentence of Section 4.06(b) and Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects (other than de minimis inaccuracies) contained therein at and as of the date of this Agreement and the Effective Time as if made at and as of such times (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time)
<omitted>
with only such exceptions
in
65
the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31)
Section 4.02. Corporate Authorization. (a) <omitted> The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by each of Parent and Merger Sub, this Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms <omitted> (b) At a meeting duly called and held, the Board of Directors (upon the unanimous recommendation of the Special Committee) has <omitted> (ii) approved, adopted and declared advisable this Agreement and the transactions contemplated hereby
<omitted>
Section 9.02. Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: <omitted> (b) (i) the representations and warranties of the Company contained in the first sentence of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(b) (Capitalization) Section 4.06(b) (Subsidiaries) (except for the first sentence thereof), Section 4.23 (Finders’ Fees) and Section 4.24 (Anti-Takeover Statutes) <omitted> shall be true and correct in all material respects <omitted> , (ii) the representations and warranties of the Company contained in <omitted> Section 4.05(c), the first sentence of Section 4.06(b) and Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects (other than de minimis inaccuracies) contained therein
<omitted>
with only such exceptions
in
65
the case of this clause (b) as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 31) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | 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)
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 <omitted>; provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct <omitted> has had or would reasonably be likely to have a Material Adverse Effect (Page 74)
3.2 Capitalization. <omitted>
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:
<omitted>
(a) Representations and Warranties. The representations and warranties of TCF set forth in (i) Sections 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), and (Page 74)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of Huntington.
<omitted>
(a) <omitted> The representations and warranties of TCF set forth in (i) Sections 3.2(a) <omitted> shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) (Page 74)
3.1 Corporate Organization. <omitted>
3.2 Capitalization. <omitted>
(c) TCF owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the TCF Subsidiaries <omitted>
3.3 Authority; No Violation. <omitted>
The execution and delivery of this Agreement and the consummation of the Merger have been duly and validly approved bythe Board of Directors of TCF. <omitted> This Agreement has been duly and validly executed and delivered by TCF and -12-
(assuming due authorization, execution and delivery by Huntington) constitutes a valid and binding obligation of TCF, enforceable against TCF in accordance with its terms
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
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. The representations and warranties of TCF set forth in (i) Sections <omitted> 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct <omitted> 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 3.1(a), 3.1(b) (with respect to TCF National Bank only), 3.2(c) (with respect to TCF National Bank only) and 3.3(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). (Page 74)
3.1 Corporate Organization. <omitted>
3.2 Capitalization. <omitted>
(c) TCF owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the TCF Subsidiaries <omitted>
3.3 Authority; No Violation. <omitted>
The execution and delivery of this Agreement and the consummation of the Merger have been duly and validly approved bythe Board of Directors of TCF. <omitted> This Agreement has been duly and validly executed and delivered by TCF and -12-
(assuming due authorization, execution and delivery by Huntington) constitutes a valid and binding obligation of TCF, enforceable against TCF in accordance with its terms
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of Huntington.
<omitted>
(a) <omitted> The representations and warranties of TCF set forth in (i) Sections <omitted> 3.8(a) <omitted> shall be true and correct <omitted> and (ii) Sections 3.1(a), 3.1(b) <omitted> , 3.2(c) <omitted> and 3.3(a) <omitted> shall be true and correct in all material respects (Page 74) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_94 | Section 2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
Section 2.3 Capitalization. <omitted>
Section 2.4 Authority; Binding Nature of Agreement. <omitted> Assuming the accuracy of Parent’s and Acquisition Subs’ representations and warranties set forth in Section 3.17 hereof, on or prior to the date hereof, the Company Board has unanimously: (a) duly and validly authorized and approved the execution, the delivery and, subject to the receipt of the Required Company Stockholder Vote, the performance of this Agreement and the consummation of the First Merger by the Company; (b) determined that the First Merger is fair to and in the best interests of the Company and its stockholders; (c) approved and declared advisable this Agreement and the consummation of the transactions contemplated by this Agreement, including the First Merger; and (d) resolved that (i) this Agreement be submitted to a vote of the Company’s stockholders and, <omitted>
Section 2.5 Vote Required. <omitted>
Section 2.6 Non-Contravention; Consents.(a) The execution and delivery of this Agreement by the Company and <omitted> the consummation by the Company of the Mergers will not: (i) cause a violation of any of the provisions of the Organizational Documents of the Company or any Company Subsidiary; <omitted>
Section 2.25 Brokers. <omitted>
Section 5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Mergers to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. (i) The representations and warranties of the Company contained in Section 2.3(c) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date of this Agreement and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall only be required to be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (ii) the representations and warranties of the Company contained in the first sentence of Section 2.1(a), Section 2.3 (other than Section 2.3(c)), Section 2.4, Section 2.5, Section 2.6(a)(i), and Section 2.25 shall have been true and accurate in all material respects at and as of the date of this Agreement and shall be true and accurate in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall only be required to be true and accurate in all material respects as of such particular date or period of time); provided, however, that, in the case of this clause (ii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; and (iii) the representations and warranties of the Company set forth in this Agreement (other than those representations and warranties referred to in the foregoing clauses (i) and (ii)) shall have been true and accurate in all respects at and as of the date of this Agreement and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall only be required to be so true and accurate as of such particular date or period of time), except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in, a Company Material Adverse Effect; provided, however, that, in the case of this clause (iii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; provided that the reference to Company Material Adverse Effect in Section 2.8(a) shall be given effect. (Pages 99-100) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_103 | SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction (or waiver by Parent and Merger Sub) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in this Agreement (other than (x) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) set forth in Section 3.1(a) (Organization and Qualification; Subsidiaries) with respect to the Company, Section 3.3 (Capitalization), Section 3.4 (Authority), Section 3.5(a)(i) (No Conflict with Organizational Documents), and clause (iii) of the first sentence and the last sentence of Section 3.1(b) (Ownership of Subsidiaries) and (y) the representations and warranties of the Company set forth in Section 3.9(a)(ii) (No Material Adverse Effect)), shall be true and correct in all respects (without giving effect to any “materiality,” “Material Adverse Effect” or similar qualifiers contained in any such representations and warranties) as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failures of any such representations and warranties to be so true and correct, in the aggregate, do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (Page 75)
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in this Agreement <omitted> shall be true and correct in all respects <omitted> except where the failures of any such representations and warranties to be so true and correct, in the aggregate, do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (Page 75)
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction (or waiver by Parent and Merger Sub) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted> (ii) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) <omitted> (B) set forth in Section 3.3 (Capitalization) shall be true and correct in all but de minimis respects, in each such case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly speaks as of an earlier date, in which case as of such earlier date) (Page 75)
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (ii) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) <omitted> (B) set forth in Section 3.3 (Capitalization) shall be true and correct in all but de minimis respects (Page 75)
SECTION 3.3 Capitalization. <omitted> (b) <omitted> Each of the outstanding Equity Securities of each of the Company’s subsidiaries and Joint Ventures is duly authorized, validly issued, fully paid and nonassessable and, with respect to the Company’s subsidiaries, all such Equity Securities are owned by the Company or another wholly-owned subsidiary of the Company and are owned free and clear of all Liens. <omitted>
SECTION 3.4 Authority. (a) <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> (b) All of the directors of the Company Board of Directors at a duly called and held meeting, unanimously <omitted> (ii) approved and adopted this Agreement and the transactions contemplated by this Agreement, including the Merger <omitted>
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be further subject to the satisfaction (or waiver by Parent and Merger Sub) at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted> (ii) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) (A) set forth in Section 3.1(a) (Organization and Qualification; Subsidiaries) with respect to the Company, Section 3.4 (Authority), Section 3.5(a)(i) (No Conflict with Organizational Documents), and clause (iii) of the first sentence and the last sentence of Section 3.1(b) (Ownership of Subsidiaries) shall be true and correct in all material respects and (B) set forth in Section 3.3 (Capitalization) shall be true and correct in all but de minimis respects, in each such case, as of the date of this Agreement and as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly speaks as of an earlier date, in which case as of such earlier date) and (iii) the representation and warranty of the Company set forth in Section 3.9(a)(ii) (No Material Adverse Effect) shall be true and correct in all respects as of the date of this Agreement; (Page 75)
SECTION 3.3 Capitalization. <omitted> (b) <omitted> Each of the outstanding Equity Securities of each of the Company’s subsidiaries and Joint Ventures is duly authorized, validly issued, fully paid and nonassessable and, with respect to the Company’s subsidiaries, all such Equity Securities are owned by the Company or another wholly-owned subsidiary of the Company and are owned free and clear of all Liens. <omitted>
SECTION 3.4 Authority. (a) <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> (b) All of the directors of the Company Board of Directors at a duly called and held meeting, unanimously <omitted> (ii) approved and adopted this Agreement and the transactions contemplated by this Agreement, including the Merger <omitted>
SECTION 7.2 Conditions to Obligations of Parent and Merger Sub. <omitted> (ii) the representations and warranties of the Company with respect to the Company and its subsidiaries (but not its Joint Ventures) (A) set forth in Section 3.1(a) (Organization and Qualification; Subsidiaries) with respect to the Company, Section 3.4 (Authority), Section 3.5(a)(i) (No Conflict with Organizational Documents), and clause (iii) of the first sentence and the last sentence of Section 3.1(b) (Ownership of Subsidiaries) shall be true and correct in all material respects and (B) set forth in Section 3.3 (Capitalization) shall be true and correct in all but de minimis respects <omitted> and (iii) the representation and warranty of the Company set forth in Section 3.9(a)(ii) (No Material Adverse Effect) shall be true and correct in all respects (Page 75) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_71 | Section 4.1 Organization, Standing and Power. <omitted>
(d) On or prior to the date hereof, the Company Board has unanimously <omitted> (iv) approved the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained in this Agreement and the consummation of the Offer, the Merger and the other Transactions upon the terms and subject to the conditions contained in this Agreement; and
Section 4.19 Takeover Laws; Section 203 Approval. <omitted> The Company does not have any stockholder rights plan or “poison pill” in effect.
<omitted>
Notwithstanding any other terms or provisions of the Offer or this Agreement, the Purchaser shall not be obligated to accept for payment, or, subject to the rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, pay for any Company Shares validly tendered and not withdrawn pursuant to the Offer, and may terminate or amend the Offer in accordance with (and to the extent permitted by) the terms of this Agreement, and may postpone the acceptance of, or payment for, any Company Shares in accordance with (and to the extent permitted by) the terms of this Agreement, at any scheduled Expiration Date (as it may have been extended pursuant to Section 2.1(d) of the Agreement) if any of the conditions set forth below are not satisfied or waived in writing by Parent at one minute after 11:59 p.m., Eastern time, on the Expiration Date (the “Expiration Time”):
<omitted>
(3) the representations and warranties of the Company (i) set forth in Section 4.2(a) and (c) (Capitalization) of the Agreement shall be true and correct in all respects (except for de minimis inaccuracies) at and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (ii) set forth in Section 4.1(a) and (d) (Organization, Standing and Power), the first two sentences of Section 4.2(b) (Capitalization), the second sentence of Section 4.2(d) (Capitalization), Section 4.3 (Authorization; Execution and Delivery; Enforceability), Section 4.19 (Takeover Laws; Section 203 Approval), Section 4.20 (Brokers and Finders) and Section 4.22 (Opinion of the Company Financial Advisor) of the Agreement shall be true and correct in all material respects at and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (iii) set forth in the Agreement, other than those Sections specifically identified in clauses (i) and (ii) of this clause (3), shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) at and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iii), where the failure to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 45) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | 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)
CONDITIONS TO THE OFFER <omitted> (iii) the remaining sections of ARTICLE IV shall be true and correct in all respects <omitted> except where the failures of any such representations and warranties to be so true and correct, individually or in the aggregate, would not be reasonably expected to have a Material Adverse Effect; (Page 110)
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> (B) the representations and warranties of the Company set forth in Section 4.3 (Capitalization) shall be true and correct in all respects (except for de minimis inaccuracies), in each case, as of the date of the Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly is made as of an earlier date, in which case such representation and warranty shall be true and correct as of such specified date); (Page 110)
CONDITIONS TO THE OFFER <omitted> (B) the representations and warranties of the Company set forth in Section 4.3 (Capitalization) shall be true and correct in all respects (except for de minimis inaccuracies), in each case, as of the date of the Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (Page 110)
SECTION 4.3 Capitalization. <omitted> (b) <omitted> Each of the outstanding shares of capital stock or other equity interests of each of the Company’s subsidiaries and, to the knowledge of the Company, of each of the Company Joint Ventures, is duly authorized, validly issued, fully paid and non-assessable and all such shares or other equity interests are owned by the Company or a subsidiary of the Company <omitted>
SECTION 4.4 Authority. <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> . The Board of Directors of the Company, at a duly called and held meeting, has (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the Company and the Company’s stockholders, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby <omitted>
<omitted> 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) (i) (A) the representations and warranties of the Company set forth in Section 4.1 (Organization and Qualifications; Subsidiaries), Section 4.2 (solely with respect to the Company) (Certificate of Incorporation and Bylaws), Section 4.4 (Authority), Section 4.5(a)(i) (Noncontravention of Organizational Documents), Section 4.22 (Brokers) and Section 4.23 (No Takeover Statutes) of the Agreement shall be true and correct in all material respects and (B) the representations and warranties of the Company set forth in Section 4.3 (Capitalization) shall be true and correct in all respects (except for de minimis inaccuracies), in each case, as of the date of the Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly is made as of an earlier date, in which case such representation and warranty shall be true and correct as of such specified date); (ii) the representation and warranty of the Company set forth in Section 4.9(b) (Absence of Certain Changes or Events) of the Agreement shall be true and correct in all respects; (Page 110)
SECTION 4.3 Capitalization. <omitted> (b) <omitted> Each of the outstanding shares of capital stock or other equity interests of each of the Company’s subsidiaries and, to the knowledge of the Company, of each of the Company Joint Ventures, is duly authorized, validly issued, fully paid and non-assessable and all such shares or other equity interests are owned by the Company or a subsidiary of the Company <omitted>
SECTION 4.4 Authority. <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> . The Board of Directors of the Company, at a duly called and held meeting, has (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the Company and the Company’s stockholders, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby <omitted>
<omitted> CONDITIONS TO THE OFFER <omitted> (b) (i) (A) the representations and warranties of the Company set forth in Section 4.1 (Organization and Qualifications; Subsidiaries), Section 4.2 (solely with respect to the Company) (Certificate of Incorporation and Bylaws), Section 4.4 (Authority), Section 4.5(a)(i) (Noncontravention of Organizational Documents), Section 4.22 (Brokers) and Section 4.23 (No Takeover Statutes) of the Agreement shall be true and correct in all material respects and (B) the representations and warranties of the Company set forth in Section 4.3 (Capitalization) shall be true and correct in all respects (except for de minimis inaccuracies) <omitted> ; (ii) the representation and warranty of the Company set forth in Section 4.9(b) (Absence of Certain Changes or Events) of the Agreement shall be true and correct in all respects; (Page 110) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_102 | 3.2. Capitalization. <omitted>
3.8. Absence of Changes or Events. <omitted>
3.3. Authority; No Violation. <omitted> The execution and delivery of this Agreement and the consummation of the Transactions have been duly and validly approved by the OCSI Board. <omitted> This Agreement has been duly and validly executed and delivered by OCSI and(assuming due authorization, execution and delivery by OCSL, Merger Sub and OFA) constitutes the valid and binding obligation of OCSI, enforceable against OCSI in accordance with its terms <omitted> 3.7. Broker’s Fees. <omitted> 3.20. Appraisal Rights. <omitted> 3.21. Valuation. <omitted>
8.2. Conditions to Obligations of OCSL and Merger Sub to Effect the Merger. The obligations of OCSL and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by OCSL, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties of OCSI. (i) The representations and warranties of OCSI set forth in Section 3.2(a) shall be true and correct in all respects (other than de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); (ii) the representations and warranties of OCSI set forth in Section 3.8(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 such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); (iii) the representations and warranties of OCSI set forth in Sections 3.3(a), 3.3(b)(i), 3.7, 3.20 and 3.21 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); and (iv) the representations and warranties of OCSI set forth in this Agreement (other than those set forth in the foregoing clauses (i), (ii) and (iii)) shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), without regard to any Material Adverse Effect or other materiality qualification to such representations and warranties, provided, however, that notwithstanding anything herein to the contrary, the condition set forth in this Section 8.2(a)(iv) shall be deemed to have been satisfied even if any such representations and warranties of OCSI are not so true and correct, without regard to any Material Adverse Effect or other materiality qualification to such representations and warranties, unless the failure of such representations and warranties of OCSI to be so true and correct, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect with respect to OCSI. (Pages 60-61) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_58 | Section 6.3 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted> (iii) The other representations and warranties of the Company set forth in Article III shall be true and correct as of the date of this Agreement and as of the Closing Date as though made as of the Closing (except to the extent that any such representation and warranty speaks as of a particular date, in which case as of such earlier date), except for inaccuracies of representations and warranties the circumstances giving rise to which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, all materiality, “Material Adverse Effect” and similar qualifiers set forth in such representations and warranties shall be disregarded). (Page 66)
Section 6.3 Conditions to the Obligations of Parent and Merger Sub. <omitted> (iii) The other representations and warranties of the Company set forth in Article III shall be true and correct <omitted> except for inaccuracies of representations and warranties the circumstances giving rise to which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (Page 66)
Section 3.2 Capital Stock.
<omitted>
Section 6.3 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: (a) Representations and Warranties.
(i) The representations and warranties of the Company set forth in Section 3.2(a), Section 3.2(b) and Section 3.8(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made as of the Closing (except to the extent that any such representation and warranty speaks as of a particular date, in which case as of such earlier date) except for de minimis inaccuracies with respect to Section 3.2(a) and Section 3.2(b); (Page 65)
Section 3.2 Capital Stock. <omitted> Section 6.3 Conditions to the Obligations of Parent and Merger Sub <omitted> (i) The representations and warranties of the Company set forth in Section 3.2(a), Section 3.2(b) and Section 3.8(b) shall be true and correct in all respects <omitted> except for de minimis inaccuracies with respect to Section 3.2(a) and Section 3.2(b) (Page 65)
Section 3.2 Capital Stock. <omitted> (d) Each of the outstanding shares of capital stock of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and all such shares are owned by the Company or another wholly-owned Subsidiary of the Company as set forth on Section 3.2(d)(i) of the Company Disclosure Letter and except as set forth on Section 3.2(d)(ii) of the Company Disclosure Letter are owned free and clear of all security interests, liens, claims, pledges, agreements, limitations on voting rights, charges or other encumbrances (collectively, “Liens”) of any nature whatsoever, except for liens under applicable securities Laws. <omitted>
Section 3.3 Authority. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted> As of the date of this Agreement, the Company Board unanimously adopted resolutions <omitted> (b) approving and declaring advisable this Agreement and the transactions contemplated hereby, including the Merger <omitted>
Section 3.8 Absence of Certain Changes or Events.<omitted> since <omitted> (b) the 2019 Audit Date through the date of this Agreement, there has not been any event, change, occurrence or effect that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (c) the date of the Company Balance Sheet through the date of this Agreement, the Company has not taken any action that would have required the prior written consent of Parent under Section 5.1(b)(i), (iii), (iv), (v), (vii), (viii), (ix), (x), (xi), or (xii) or if such action had been taken after the date of this Agreement and prior to the Closing. <omitted>
Section 3.21 Brokers. <omitted>
Section 3.22 Opinion of Financial Advisor. <omitted>
Section 6.3 Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 3.2(a), Section 3.2(b) and Section 3.8(b) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made as of the Closing (except to the extent that any such representation and warranty speaks as of a particular date, in which case as of such earlier date) except for de minimis inaccuracies with respect to Section 3.2(a) and Section 3.2(b); (ii) The representations and warranties of the Company set forth in Section 3.2(c), Section 3.2(d), Section 3.2(e), Section 3.3(a), Section 3.8(c), Section 3.21 and Section 3.22 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made as of the Closing (except to the extent that any such representation and warranty speaks as of a particular date, in which case as of such earlier date); (Page 65)
Section 3.2 Capital Stock. <omitted>
Section 3.3 Authority. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted> As of the date of this Agreement, the Company Board unanimously adopted resolutions <omitted> (b) approving and declaring advisable this Agreement and the transactions contemplated hereby, including the Merger <omitted>
Section 3.8 Absence of Certain Changes or Events.<omitted> since <omitted> (c) the date of the Company Balance Sheet through the date of this Agreement, the Company has not taken any action that would have required the prior written consent of Parent under Section 5.1(b)(i), (iii), (iv), (v), (vii), (viii), (ix), (x), (xi), or (xii) or if such action had been taken after the date of this Agreement and prior to the Closing. <omitted>
Section 3.21 Brokers. <omitted>
Section 3.22 Opinion of Financial Advisor. <omitted>
Section 6.3 Conditions to the Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in <omitted> Section 3.2(b) and Section 3.8(b) shall be true and correct in all respects <omitted> except for de minimis inaccuracies with respect to <omitted> Section 3.2(b); (ii) The representations and warranties of the Company set forth in Section 3.2(c), Section 3.2(d), Section 3.2(e), Section 3.3(a), Section 3.8(c), Section 3.21 and Section 3.22 shall be true and correct in all material respects (Page 65) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_6 | 5.2 Conditions to Obligations of GBCI. The obligations of GBCI to consummate the Merger are subject to satisfaction or written waiver by GBCI of the following conditions at or before Closing: 5.2.1 Representations and Warranties. <omitted> (c) representations and warranties of AB and the Bank contained in this Agreement not otherwise set forth in clause (a) or clause (b) of this Section 5.2.1 will be true and correct in all respects except where the failure to be so true and correct would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect with respect to AB, in the case of clause (b) and clause (c) of this Section 5.2.1, disregarding all qualifications or limitations as to “materiality,” “Material Adverse Effect” and words of similar import set forth therein, and, in each case, with the same force and effect as though such representations and warranties had been made on and as of Closing (except to the extent that such representations and warranties are by their express provisions made as of a specified date, in which case such representations and warranties will be true and correct in all material respects or true and correct, as the case may be, as of such date). AB and the Bank will have delivered to GBCI a certificate to that effect, executed by a duly authorized officer of AB and the Bank and dated as of the Effective Date. (Page 45)
5.2 Conditions to Obligations of GBCI. The obligations of GBCI to consummate the Merger are subject to satisfaction or written waiver by GBCI of the following conditions at or before Closing: 5.2.1 Representations and Warranties. <omitted> (c) representations and warranties of AB and the Bank contained in this Agreement not otherwise set forth in clause (a) or clause (b) of this Section 5.2.1 will be true and correct in all respects except where the failure to be so true and correct would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect with respect to AB (Page 45)
3.1.3 Capital Stock. <omitted> 5.2 Conditions to Obligations of GBCI. The obligations of GBCI to consummate the Merger are subject to satisfaction or written waiver by GBCI of the following conditions at or before Closing: 5.2.1 Representations and Warranties. The (a) representations and warranties of AB and the Bank contained in Sections 3.1.3(a), 3.1.3(b), 3.1.3(c), <omitted> will be true and correct in all respects, except, in the case of Sections 3.1.3(a), 3.1.3(b), and 3.1.3(c) with respect to de minimis inaccuracies, (Page 45)
3.1.3 Capital Stock. <omitted> 5.2 Conditions to Obligations of GBCI. The obligations of GBCI to consummate the Merger are subject to satisfaction or written waiver by GBCI of the following conditions at or before Closing: 5.2.1 Representations and Warranties. The (a) representations and warranties of AB and the Bank contained in Sections 3.1.3(a), 3.1.3(b), 3.1.3(c), <omitted> will be true and correct in all respects, except <omitted> with respect to de minimis inaccuracies, (Page 45)
3.1.1 Organization and Good Standing; Authority. (a) AB is a corporation duly organized, validly existing and in good standing under the Laws of the State of Utah, is a registered bank holding company pursuant to the BHC Act, and has all requisite corporate power and authority to own and operate its Properties and to carry on its businesses as now conducted
<omitted>
(d) This Agreement has been duly executed and delivered by each of AB and the Bank and, assuming due and valid authorization, execution and delivery of this Agreement by GBCI and Glacier Bank, is a valid and binding obligation of each of AB and the Bank enforceable against AB and the Bank, respectively, in accordance with its terms <omitted>
3.1.2 No Breach or Violation. <omitted>
(b) The execution, delivery and performance of this Agreement by AB and the Bank and the consummation of the Transactions do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Authority
<omitted>
3.1.12
No Material Adverse Effect.
<omitted>
3.1.18
Fairness Opinion <omitted>
3.1.19 Broker’s or Finder’s Fees. <omitted>
5.2.1
Representations and Warranties.
The (a) representations and warranties of AB and the Bank contained in Sections 3.1.3(a), 3.1.3(b), 3.1.3(c), 3.1.12 and 3.1.18 will be true
and correct in all respects, except, in the case of Sections 3.1.3(a),
3.1.3(b), and 3.1.3(c) with respect to de minimis inaccuracies, (b) representations and warranties of AB and the Bank contained in the first sentence of Section 3.1.1(a), the first sentence of Section 3.1.1(b), and Sections 3.1.1(d), 3.1.2, and 3.1.19 will be true and correct in all material respects, (Page 45)
3.1.1 Organization and Good Standing; Authority. (a) AB <omitted> has all requisite corporate power and authority to own and operate its Properties and to carry on its businesses as now conducted
<omitted>
(d) This Agreement has been duly executed and delivered by each of AB and the Bank and <omitted> is a valid and binding obligation of each of AB and the Bank enforceable against AB and the Bank, respectively, in accordance with its terms <omitted>
3.1.2 No Breach or Violation. <omitted>
3.1.12
No Material Adverse Effect.
<omitted>
3.1.18
Fairness Opinion <omitted>
3.1.19 Broker’s or Finder’s Fees. <omitted>
5.2 Conditions to Obligations of GBCI. The obligations of GBCI to consummate the Merger are subject to satisfaction or written waiver by GBCI of the following conditions at or before Closing:
5.2.1
Representations and Warranties. The (a) representations and warranties of AB and the Bank contained in Sections 3.1.3(a), 3.1.3(b), 3.1.3(c), 3.1.12 and 3.1.18 will be true
and correct in all respects, except, in the case of Sections 3.1.3(a),
3.1.3(b), and 3.1.3(c) with respect to de minimis inaccuracies, (b) representations and warranties of AB and the Bank contained in the first sentence of Section 3.1.1(a), the first sentence of Section 3.1.1(b), and Sections 3.1.1(d), 3.1.2, and 3.1.19 will be true and correct in all material respects, (Page 45) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_18 | 7 . 2 Conditions to Obligations of BancorpSouth. The obligation of BancorpSouth to effect the Merger is also subject to the satisfaction, or waiver by BancorpSouth, at or prior to the Effective Time, of the following conditions: -69-
(a) Representations and Warranties.
<omitted>
All other representations and warranties of Cadence set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on Cadence or the Surviving Entity. BancorpSouth shall have received a certificate dated as of the Closing Date and signed on behalf of Cadence by the Chief Executive Officer or the Chief Financial Officer of Cadence to the foregoing effect. (Page 79)
7 . 2 Conditions to Obligations of BancorpSouth. <omitted>
(a) Representations and Warranties.
<omitted>
All other representations and warranties of Cadence set forth in this Agreement <omitted> shall be true and correct in all respects <omitted> ; provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct <omitted> has had or would reasonably be expected to have a Material Adverse Effect (Page 79)
3.2
Capitalization.
<omitted>
7 . 2 Conditions to Obligations of BancorpSouth. The obligation of BancorpSouth to effect the Merger is also subject to the satisfaction, or waiver by BancorpSouth, at or prior to the Effective Time, of the following conditions: <omitted>
(a) Representations and Warranties . The representations and warranties of Cadence set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), in each case, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and the representations and warranties of Cadence set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Cadence Bank), Section 3.2(b) (but only with respect to Cadence Bank), Section 3.3(a) and Section 3.7 (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). (Pages 78-79)
3.2
Capitalization.
<omitted>
7 . 2 Conditions to Obligations of BancorpSouth. <omitted>
(a) Representations and Warranties . The representations and warranties of Cadence set forth in Section 3.2(a) <omitted> (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) (Pages 78-79)
3.1 Corporate Organization.
<omitted>
3.2 Capitalization.
<omitted>
(b) Except
as would not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on Cadence,
Cadence owns, directly or indirectly, all the issued and outstanding
shares of capital stock or other equity ownership interests of each of
the Cadence Subsidiaries,
free and clear of any liens, claims, title
defects, mortgages, pledges, charges, and
security interests whatsoever, and any other encumbrances securing a payment or the performance of an obligation (collectively, “Liens”), and all of such shares or equity ownership interests are duly
authorized and validly issued and are fully paid, nonassessable (except, with respect to Subsidiaries that are depository institutions, as provided under any provision of applicable state law comparable to 12 U.S.C. § 55) and free of preemptive rights, with no personal liability attaching to the ownership thereof.
3.3 Authority; No Violation.
(a) Cadence has full corporate power and authority to execute and deliver this Agreement and, subject to the shareholder and other
actions described below, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the Merger have been duly and validly approved by the Board of Directors of Cadence.
<omitted>
This Agreement has been duly and validly executed and delivered by Cadence and (assuming due authorization, execution and delivery by BancorpSouth) constitutes a valid and binding obligation of Cadence, enforceable against Cadence in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws of general applicability affecting the rights of creditors generally and the availability of equitable remedies (the “Enforceability Exceptions”)).
<omitted>
3.7 Broker’s Fees.
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7 . 2 Conditions to Obligations of BancorpSouth. The obligation of BancorpSouth to effect the Merger is also subject to the satisfaction, or waiver by BancorpSouth, at or prior to the Effective Time, of the following conditions: -69-
(a) Representations and Warranties . The representations and warranties of Cadence set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), in each case, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and the representations and warranties of Cadence set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Cadence Bank), Section 3.2(b) (but only with respect to Cadence Bank), Section 3.3(a) and Section 3.7 (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). (Page 79)
3.1 Corporate Organization.
<omitted>
3.2 Capitalization.
<omitted>
(b) <omitted>
Cadence owns, directly or indirectly, all the issued and outstanding
shares of capital stock or other equity ownership interests of each of
the Cadence Subsidiaries,
<omitted>
3.3 Authority; No Violation.
(a) Cadence has full corporate power and authority to execute and deliver this Agreement and, subject to the shareholder and other
actions described below, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the Merger have been duly and validly approved by the Board of Directors of Cadence.
<omitted>
This Agreement <omitted> constitutes a valid and binding obligation of Cadence, enforceable against Cadence in accordance with its terms
<omitted>
3.7 Broker’s Fees.
<omitted>
3.8 Absence of Certain Changes or Events.
<omitted>
7 . 2 Conditions to Obligations of BancorpSouth. <omitted>
(a) Representations and Warranties . The representations and warranties of Cadence set forth in Section 3.2(a) and Section 3.8(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis), <omitted> and the representations and warranties of Cadence set forth in Section 3.1(a), Section 3.1(b) <omitted> , Section 3.2(b) <omitted> , Section 3.3(a) and Section 3.7 <omitted> shall be true and correct in all material respects (Page 79) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_121 | Section 4.4 Authority. <omitted> This Agreement has been duly executed and delivered by Company, and assuming due and validauthorization, execution and delivery by Parent and Merger Sub, constitutes a legally valid and binding obligation of Company enforceable againstCompany in accordance with its terms <omitted> (b)The Company Board at a duly held meeting, has unanimously <omitted> approved, adopted and declared advisable thisAgreement and the Merger, <omitted>
Section 8.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and to consummate the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent, at or prior to the Effective Time, of the following additional conditions: (a) Representations and Warranties. (i) The representations and warranties set forth in Sections 4.1(a) and (b) (Organization and Qualification; Subsidiaries), Section 4.3 (Capital Structure) (except Section 4.3(a)) , Section 4.4 (Authority), Section 4.20 (Opinion of Financial Advisor), Section 4.21 (Approval Required), Section 4.22 (Brokers), and Section 4.23 (Investment Company Act) shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Time, as though made as of the Effective Time, (ii) the representations and warranties set forth in Section 4.3(a) (Capital Structure) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Effective Time, as though made as of the Effective Time, and (iii) each of the other representations and warranties of Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Effective Time, as though made as of the Effective Time, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of clause (iii) where the failure of such representations or warranties to be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 58) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_104 | SECTION 7.02.
Conditions to Obligations of Parent and Merger Sub.
The obligations of Parent and Merger Sub to effect the
Merger are further subject to the satisfaction (or waiver by
Parent and Merger Sub) on or prior to the Closing Date of the following conditions:
<omitted>
(a) Representations and Warranties of the Company.
The representations and warranties of the Company
<omitted>
(iv) set forth in Article III other than those specified in the foregoing clauses (i), (ii) and (iii) shall be true and correct (for purposes of determining the satisfaction of this condition, without regard to any “materiality”, “Company Material Adverse Effect” or similar qualifications and exceptions contained therein) as of the Closing Date as though made at and as of such date (except to the extent such representation and warranty expressly relates to a specified date (in which case at and as of such specified date)), other than for such failures to be true and correct that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 77)
SECTION 7.02.
Conditions to Obligations of Parent and Merger Sub.
<omitted>
The representations and warranties of the Company
<omitted>
(iv) set forth in Article III other than those specified in the foregoing clauses (i), (ii) and (iii) shall be true and correct <omitted> other than for such failures to be true and correct that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 77)
SECTION 7.02.
Conditions to Obligations of Parent and Merger Sub.
The obligations of Parent and Merger Sub to effect the
Merger are further subject to the satisfaction (or waiver by
Parent and Merger Sub) on or prior to the Closing Date of the following conditions:
<omitted>
(a) Representations and Warranties of the Company.
The representations and warranties of the Company
<omitted>
(ii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct, as of the Closing Date as though made at and as of such date, except for any de minimis inaccuracies; (Page 77)
SECTION 7.02.
Conditions to Obligations of Parent and Merger Sub.
<omitted>
The representations and warranties of the Company
<omitted>
(ii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct, as of the Closing Date as though made at and as of such date, except for any de minimis inaccuracies; (Page 77)
SECTION 3.04. Authority; Execution and Delivery; Enforceability.
<omitted>
(b)
The Company Board at a meeting duly called and held, duly and
unanimously adopted resolutions (i) determining that this Agreement and the Transactions, including the Merger, are in the best interests of the Company and its stockholders, (ii) approving and declaring advisable this Agreement and the Transactions, including the Merger, in each case on the terms and subject to the conditions set forth in this Agreement
<omitted>
(c)
No state takeover statute, “business combination”, “control share acquisition”, “fair price”, “moratorium”, “interested
stockholder”,
“affiliate transaction” or similar Law, and no analogous provision in
the Company Charter or the Company Bylaws, applies to
the Company with respect to this Agreement, the Merger or any other Transaction.
<omitted>
There is no stockholder rights plan, “poison pill” antitakeover plan or
similar device in effect to which the Company is subject, party or
otherwise bound.
<omitted>
SECTION 7.02. Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (or waiver by Parent and Merger Sub) on or prior to the Closing Date of the following conditions: <omitted>
(a) Representations and Warranties of the Company. The representations and warranties of the Company (i) set forth in Section 3.07(a) (Absence of Certain Changes or Events) shall be true and correct as of the Closing Date as though made at and as of such date; (ii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct, as of the Closing Date as though made at and as of such date, except for any de minimis inaccuracies; (iii) set forth in Section 3.01(a) (Organization, Standing and Power), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.05(a)(i)(x) (No Conflicts), and Section 3.21 (Brokers and Other Advisors) and Section 3.22 (Opinions of Financial Advisors) shall be true and correct in all material respects as of the Closing Date as though made at and as of such date (except to the extent such representation and warranty expressly relates to a specified date (in which case at and as of such specified date)) (Pages 76-77)
SECTION 3.04. Authority; Execution and Delivery; Enforceability.
<omitted>
(b)
The Company Board at a meeting duly called and held, duly and
unanimously adopted resolutions <omitted> (ii) approving and declaring advisable this Agreement and the Transactions, including the Merger, in each case on the terms and subject to the conditions set forth in this Agreement
<omitted>
(c)
No state takeover statute, “business combination”, “control share acquisition”, “fair price”, “moratorium”, “interested
stockholder”,
“affiliate transaction” or similar Law, and no analogous provision in
the Company Charter or the Company Bylaws, applies to
the Company with respect to this Agreement, the Merger or any other Transaction.
<omitted>
There is no stockholder rights plan, “poison pill” antitakeover plan or
similar device in effect to which the Company is subject, party or
otherwise bound.
<omitted>
SECTION 7.02. Conditions to Obligations of Parent and Merger Sub.
<omitted>
The representations and warranties of the Company (i) set forth in Section 3.07(a) (Absence of Certain Changes or Events) shall be true and correct <omitted> (ii) set forth in Section 3.02(a) through (d) (Capital Structure) shall be true and correct, <omitted> except for any de minimis inaccuracies; (iii) set forth in Section 3.01(a) (Organization, Standing and Power), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.05(a)(i)(x) (No Conflicts), and Section 3.21 (Brokers and Other Advisors) and Section 3.22 (Opinions of Financial Advisors) shall be true and correct in all material respects (Pages 76-77) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_21 | 7.2 Conditions to Obligations of Buyer and Merger Sub.
The obligations of Buyer and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Buyer and Merger Sub, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Company set forth in
<omitted>
All other representations and warranties of Company set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be likely to have a Material Adverse Effect on Company or Buyer. (Page 62)
7.2 Conditions to Obligations of Buyer and Merger Sub.
<omitted>
The representations and warranties of Company set forth in
<omitted>
All other representations and warranties of Company set forth in this Agreement <omitted> shall be true and correct in all respects <omitted> provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate,<omitted> has had or would reasonably be likely to have a Material Adverse Effect on Company or Buyer. (Page 62)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Buyer and Merger Sub, at or prior to the Effective Time, of the following conditions: (a) Representations and Warranties. The representations and warranties of Company set forth in (i) Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the 54
Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), (Pages 61-62)
3.2 Capitalization. <omitted>
7.2 Conditions to Obligations of Buyer and Merger Sub. <omitted>
The representations and warranties of Company set forth in (i) Sections 3.2(a) <omitted> shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) (Pages 61-62)
3.1 Corporate Organization.
<omitted>
3.2 Capitalization.
<omitted>
(c)
Except as set forth on Section 3.2(c) of the Company Disclosure Schedule, Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Company Subsidiaries, free and clear of any liens, pledges, charges, encumbrances and security interests whatsoever (“Liens”), and all of such shares or equity ownership interests are duly
authorized and validly issued and are fully paid, nonassessable (except, with respect to Company Subsidiaries that are insured depository
institutions, as provided under 12 U.S.C. § 55 or any comparable provision of applicable state law) and free of preemptive rights, with no
personal liability attaching to the ownership thereof.
<omitted>
3.3 Authority; No Violation.
<omitted>
(a) <omitted> The execution and delivery of this Agreement and the
consummation of the Merger have been adopted by the Board of
Directors of Company.
<omitted>
This Agreement has been duly and validly executed and delivered by Company, Company Bank and (assuming due authorization, execution and delivery by Buyer and Merger Sub) constitutes a valid and binding obligation of Company and Company Bank, enforceable against Company and Company Bank in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws of general applicability relating to or affecting insured depository institutions or their parent companies or the rights of creditors generally and subject to general principles of equity (the “Enforceability Exceptions”)).
<omitted>
3.8
Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Buyer and Merger Sub, at or prior to the Effective Time, of the following conditions: (a) Representations and Warranties. The representations and warranties of Company set forth in (i) Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the 54
Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and (ii) Sections 3.1(a), 3.1(b) (with respect to Company Bank only), 3.2(c) (with respect to Company Bank only) and 3.3(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date). (Pages 61-62)
3.1 Corporate Organization.
<omitted>
3.2 Capitalization.
<omitted>
(c)
Except as set forth on Section 3.2(c) of the Company Disclosure Schedule, Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the Company Subsidiaries,
<omitted>
3.3 Authority; No Violation.
<omitted>
(a) <omitted> The execution and delivery of this Agreement and the
consummation of the Merger have been adopted by the Board of
Directors of Company.
<omitted>
This Agreement <omitted> constitutes a valid and binding obligation of Company and Company Bank, enforceable against Company and Company Bank in accordance with its terms <omitted>
3.8
Absence of Certain Changes or Events.
<omitted>
7.2 Conditions to Obligations of Buyer and Merger Sub. <omitted> The representations and warranties of Company set forth in (i) Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) <omitted>
and (ii) Sections 3.1(a), 3.1(b) (with respect to Company Bank only), 3.2(c) (with respect to Company Bank only) and 3.3(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects (Pages 61-62) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_23 | 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, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: <omitted>
(b)
<omitted>
(iv) the other representations and warranties of the Company contained in Article IV (disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had, individually or in the aggregate, a Company Material Adverse Effect; (Page 102)
Section 8.02 Conditions to the Obligations of Parent and Merger Sub. <omitted> (iv) the other representations and warranties of the Company contained in Article IV <omitted> shall be true and correct <omitted> except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had, individually or in the aggregate, a Company Material Adverse Effect; (Page 102)
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, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions:
<omitted>
(b)
<omitted>
(ii) the representations and warranties of the Company contained in Section 4.05(a) (Capitalization) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuracies; (Page 102)
Section 8.02 Conditions to the Obligations of Parent and Merger Sub.
<omitted>
(ii) the representations and warranties of the Company contained in Section 4.05(a) (Capitalization) shall be true and correct <omitted> except for any de minimis inaccuracies; (Page 102)
Section 4.01
Corporate Existence and Power
.
<omitted>
The Company has all requisite corporate power and authority required to own or lease all of its properties or assets and to carry on its
business as now conducted,
<omitted>
Section 4.02
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, legal and binding agreement of the Company
enforceable against the
Company in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors’ rights and
remedies generally, and subject to general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or
in equity (collectively, the
“
Bankruptcy and Equity Exceptions
”)).
(b)
At
a meeting duly called and held, the Board of Directors of the Company
adopted
resolutions (i) determining that 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)
approving, adopting and
declaring advisable this
Agreement and the transactions contemplated hereby (including
the Merger), (iii) directing that the adoption of this Agreement be
submitted to a vote at a meeting of the Company’s stockholders, and (iv)
recommending adoption of this Agreement by
the Company’s stockholders (such
recommendation, the “
Company Board Recommendation
”).
<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, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions:
<omitted>
(b) (i) the representations and warranties of the Company contained in the first and last sentences of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-contravention), Section 4.26 (Opinion of Financial Advisor) and Section 4.27 (Finders’ Fees) 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 as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date);
<omitted>
(iii) the representation and warranty set forth in Section 4.09(b) (Absence of Certain Changes) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (Page 102)
Section 4.01
Corporate Existence and Power
.
<omitted>
The Company has all requisite corporate power and authority required to own or lease all of its properties or assets and to carry on its
business as now conducted,
<omitted>
Section 4.02
Corporate Authorization
.
(a)
<omitted>
This Agreement
<omitted>
constitutes a valid, legal and binding agreement of the Company
enforceable against the
Company in accordance with its terms
<omitted>
(b)
At
a meeting duly called and held, the Board of Directors of the Company
adopted
resolutions <omitted> (ii)
approving, adopting and
declaring advisable this
Agreement and the transactions contemplated hereby (including
the Merger),
<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, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions:
<omitted>
(b) (i) the representations and warranties of the Company contained in the first and last sentences of Section 4.01 (Corporate Existence and Power), Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-contravention), Section 4.26 (Opinion of Financial Advisor) and Section 4.27 (Finders’ Fees) shall be true and correct in all material respects
<omitted> (iii) the representation and warranty set forth in Section 4.09(b) (Absence of Certain Changes) shall be true and correct in all respects (Page 102) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_61 | 3.1 Organization, Standing and Power. <omitted>
3.2 Capitalization. <omitted>
3.4 Authority; No Conflict; Required Filings and Consents. <omitted>
(a) <omitted> The Company Board, at a meeting duly called and held, by the unanimous vote of all directors, duly adopted resolutions (i) determining and declaring that it is in the best interests of the Company and the stockholders of the Company that the Company enter into this Agreement and consummate the Merger and the 11
other transactions contemplated by this Agreement on the terms and subject to the conditions set forth herein, <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by Parent, US Holdco and Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). <omitted>
3.7 Absence of Certain Changes or Events. Since the date of the Company Balance Sheet until the date of this Agreement, there has not been a Company Material Adverse Effect, nor has there been any effect, development, circumstance or change that would reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect. <omitted>
3.21 Opinion of Financial Advisor. <omitted>
3.22 Takeover Statutes. <omitted>
3.23 Brokers. <omitted>
7.3 Conditions to the Obligations of Parent, US Holdco and Merger Sub. The obligation of Parent, US Holdco and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by Parent (on behalf of Parent, US Holdco and Merger Sub), on or prior to the Closing Date of the following conditions:
(a) (i) the representations and warranties of the Company contained in the first, second and third sentences of Section 3.1, Section 3.2, Section 3.4(a), Section 3.21, Section 3.22 and Section 3.23 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date; (ii) the representations and warranties of the Company contained in the first sentence Section 3.7 shall be true and correct in all respects as of the date of this Agreement; (iii) the representations and warranties of the Company contained in Section 3.2 shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (other than any such representation or warranty that is made as of a specific date, which need only be true and correct as of such date), except where the failure to be true and correct is, in the aggregate, de minimis in nature and amount; and (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (other than any such representation or warranty that is made as of a specific date, which need only be true and correct as of such date), except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 67) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_150 | 5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. <omitted> (iii) the representations and warranties of the Company set forth in this Agreement (other than those representations and warranties referred to in the foregoing clauses (i) and (ii)) shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and accurate as of such particular date or period of time), except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in, a Company Material Adverse Effect. (Page 83)
5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (iii) the representations and warranties of the Company set forth in this Agreement <omitted> shall have been true and accurate in all respects at and as of the date hereof and shall be true and accurate in all respects at and as of the Closing Date as if made at and as of such time <omitted> except as, individually or in the aggregate has not constituted or resulted in or would not reasonably be expected to constitute or result in, a Company Material Adverse Effect. (Page 83)
2.3 Capitalization. <omitted> 5.2 Additional Conditions Precedent to Parent’s Obligations. The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time) (Page 83)
2.3 Capitalization. <omitted> 5.2 Additional Conditions Precedent to Parent’s Obligations. <omitted> (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies (Page 83)
2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
2.3 Capitalization. <omitted> ( d ) Except as set forth in Section 2.3(c), there are no: <omitted> (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company or any Company Subsidiary is or may become obligated to sell or otherwise issue any shares of its capital stock or other equity interest or any other securities. <omitted>
2.4 Authority; Binding Nature of Agreement. <omitted> This Agreement has been duly executed and delivered on behalf of the Company and, assuming the due authorization, execution and delivery of this Agreement on behalf of Parent and Acquisition Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted>
2.5 Vote Required. <omitted>
2.6 Non-Contravention; Consents. <omitted>
2.21 Takeover Statutes. <omitted>
2.24 Brokers. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations . The obligation of Parent to cause the Merger to be effected and otherwise cause the transactions contemplated by this Agreement to be consummated are subject to the satisfaction or waiver by Parent, as of the Closing, of each of the following conditions: (a) Accuracy of Representations. (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies, at and as of the date hereof and shall be true and accurate, other than de minimis inaccuracies, at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate, other than de minimis inaccuracies, as of such particular date or period of time); (ii) the representations and warranties of the Company contained in Section 2.1(a), Section 2.3(f), Section 2.4, Section 2.5, Section 2.6(a)(i), Section 2.21 and Section 2.24 shall have been true and accurate in all material respects at and as of the date hereof and shall be true and accurate in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be true and accurate in all material respects as of such particular date or period of time); provided, however, that, in the case of this clause (ii), for purposes of determining the accuracy of such representations and warranties, all materiality, “Company Material Adverse Effect” and similar qualifications set forth in such representations and warranties shall be disregarded; (Page 83)
2.1 Due Organization and Good Standing; Subsidiaries. <omitted>
2.3 Capitalization. <omitted> ( d ) Except as set forth in Section 2.3(c), there are no: <omitted> (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company or any Company Subsidiary is or may become obligated to sell or otherwise issue any shares of its capital stock or other equity interest or any other securities. <omitted>
2.4 Authority; Binding Nature of Agreement. <omitted> This Agreement has been duly executed and delivered on behalf of the Company and, assuming the due authorization, execution and delivery of this Agreement on behalf of Parent and Acquisition Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted>
2.5 Vote Required. <omitted>
2.6 Non-Contravention; Consents. <omitted>
2.21 Takeover Statutes. <omitted>
2.24 Brokers. <omitted>
5.2 Additional Conditions Precedent to Parent’s Obligations . <omitted> (i) The representations and warranties of the Company contained in Section 2.3 (other than Section 2.3(f)) shall have been true and accurate, other than de minimis inaccuracies <omitted> (ii) the representations and warranties of the Company contained in Section 2.1(a), Section 2.3(f), Section 2.4, Section 2.5, Section 2.6(a)(i), Section 2.21 and Section 2.24 shall have been true and accurate in all material respects (Page 83) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_41 | Section 6.02 Additional Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are also subject to the satisfaction (or to the extent permitted by applicable Law, waiver by Parent) at or prior to the Closing of each of the following additional conditions: (a) Representations and Warranties. (i) Each of the representations and warranties of the Company contained in this Agreement (other than the representations and warranties of the Company set forth in Section 3.01(a) (Organization and Qualification; Subsidiaries), Section 3.02 (Capitalization) (but for purposes of this clause (i), including Section 3.02(c) to the extent it relates to Company Subsidiaries other than Significant Subsidiaries), Section 3.03 (Authority), Section 3.09(b) (Absence of Certain Changes), Section 3.23 (Opinions of Financial Advisors), Section 3.25 (Vote Required), and Section 3.26 (Brokers)), without regard to materiality or Company Material Adverse Effect qualifiers contained within such representations and warranties, shall be true and correct as of the date hereof and as of the Closing as though made as of the Closing (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 true and correct on and as of such specific date), other than failures to be true and correct that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect; (Pages 33-34)
Section 6.02 Additional Conditions to Obligations of Parent and Sub. <omitted> Each of the representations and warranties of the Company contained in this Agreement <omitted> shall be true and correct as of the date hereof and as of the Closing <omitted> other than failures to be true and correct that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect; (Pages 33-34)
Section 6.02 Additional Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are also subject to the satisfaction (or to the extent permitted by applicable Law, waiver by Parent) at or prior to the Closing of each of the following additional conditions: <omitted> (iii) the representations and warranties contained in Section 3.02 (Capitalization) (solely with respect to the capitalization of the Company and not with respect to the capitalization of any Company Subsidiary) shall be true and correct in all respects (other than de minimis inaccuracies) as of the date hereof and as of the Closing as though made on and as of the Closing (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 true and correct in all respects (other than de minimis inaccuracies) on and as of such specific date); (Page 34)
Section 6.02 Additional Conditions to Obligations of Parent and Sub. <omitted> (iii) the representations and warranties contained in Section 3.02 (Capitalization) <omitted> shall be true and correct in all respects (other than de minimis inaccuracies) (Page 34)
Section 3.03 Authority. (a) <omitted> 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 its terms,
<omitted>
(b) The Company Board, at a meeting duly called and held, has (i) approved the Merger upon the terms and subject to the conditions set forth in this Agreement
<omitted>
Section 6.02 Additional Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are also subject to the satisfaction (or to the extent permitted by applicable Law, waiver by Parent) at or prior to the Closing of each of the following additional conditions: <omitted> (ii) the representations and warranties contained in Section 3.01(a) (Organization and Qualification; Subsidiaries), Section 3.02(c) (Capitalization) (solely with respect to the capitalization of Company Subsidiaries that are Significant Subsidiaries and not with respect to any other Company Subsidiaries), Section 3.03 (Authority), Section 3.23 (Opinions of Financial Advisors), Section 3.25 (Vote Required) and Section 3.26 (Brokers) shall be true and correct in all material respects as of the date hereof and as of the Closing as though made on and as of the Closing (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 true and correct in all material respects on and as of such specific date); <omitted> and (iv) the representation and warranty of the Company in Section 3.09(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date hereof and as of the Closing as though made on and as of the Closing (except to the extent such representation and warranty is made as of a specific date, in which case as of such specific date). (Page 34)
Section 3.03 Authority. (a) <omitted> 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 its terms,
<omitted>
(b) The Company Board, at a meeting duly called and held, has (i) approved the Merger upon the terms and subject to the conditions set forth in this Agreement
<omitted>
Section 6.02 Additional Conditions to Obligations of Parent and Sub. <omitted> (ii) the representations and warranties contained in Section 3.01(a) (Organization and Qualification; Subsidiaries), Section 3.02(c) (Capitalization) (solely with respect to the capitalization of Company Subsidiaries that are Significant Subsidiaries and not with respect to any other Company Subsidiaries), Section 3.03 (Authority), Section 3.23 (Opinions of Financial Advisors), Section 3.25 (Vote Required) and Section 3.26 (Brokers) shall be true and correct in all material respects <omitted> and (iv) Section 3.09(b) (Absence of Certain Changes) shall be true and correct in all respects (Page 34) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_105 | Section 9.02
Conditions to Obligations of Parent, US Holdco and Merger Sub.
The obligations of Parent, US Holdco and Merger Sub to effect the
Merger are also subject to the satisfaction or waiver (where
permissible pursuant to applicable Law) by Parent, US Holdco and
Merger Sub on or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company (other than in the first sentence of Section 4.01(a) (solely with respect to the Company), the first sentence of Section 4.01(b) (solely with respect to the Company), Section 4.02(a) (other than the last sentence), Section 4.02(b)(i), Section 4.02(b)(ii), Section 4.03(a), Section 4.03(b)(i) (solely with respect to the Company), Section 4.03(d), Section 4.05(a) and Section 4.10) set forth in Article IV of this Agreement shall be true and correct in all respects (without giving effect to any limitation indicated by the words “Company Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) when made and on and as of the Closing Date, as if made on and as of such date (except those representations and warranties that address matters only as of a particular date, which shall be true and correct in all respects as of that date), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 101)
Section 9.02 Conditions to Obligations of Parent, US Holdco and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in Article IV of this Agreement <omitted> except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (Page 101)
Section 4.02 Capital Structure <omitted>
Section 9.02
Conditions to Obligations of Parent, US Holdco and Merger Sub.
The obligations of Parent, US Holdco and Merger Sub to effect the
Merger are also subject to the satisfaction or waiver (where
permissible pursuant to applicable Law) by Parent, US Holdco and
Merger Sub on or prior to the Effective Time of the following conditions: (a) Representations and Warranties. <omitted> (ii) the representations and warranties of the Company contained in Section 4.02(a) (other than the last sentence) and Section 4.02(b)(i) shall be true and correct (other than de minimis inaccuracies) when made and on and as of the Closing Date, as if made on and as of such date (except those representations and warranties that address matters only as of a particular date, which shall be true and correct (other than de minimis inaccuracies); (Page 101)
Section 4.02 Capital Structure <omitted>
Section 9.02
Conditions to Obligations of Parent, US Holdco and Merger Sub. <omitted> (ii) the representations and warranties of the Company contained in Section 4.02(a) (other than the last sentence) and Section 4.02(b)(i) shall be true and correct (other than de minimis inaccuracies) (Page 101)
Section 4.01 Organization; Standing and Power; Charter Documents; Subsidiaries. <omitted>
Section 4.02 Capital Structure.
<omitted>
Section 4.03 Authority; Non-Contravention; Governmental Consents; Board Approval; Anti-Takeover Statutes.(a) Authority. <omitted>
This Agreement has been duly executed and delivered by the Company and, assuming due execution and delivery by Parent, US Holdco and Merger Sub, constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar Laws affecting creditors’ rights generally and by general principles of equity.
<omitted>
Section 4.05 Absence of Certain Changes or Events.
<omitted>
Section 4.10 Brokers’ and Finders’ Fees.
<omitted>
Section 9.02 Conditions to Obligations of Parent, US Holdco and Merger Sub. (a) Representations and Warranties <omitted>
(iii) the representations and warranties made in Section 4.05(a) shall be true and correct in all respects when made and on and as of the Closing Date; and
(iv) the representations and warranties contained in the first sentence of Section 4.01(a) (solely with respect to the Company), Section 4.01(b) (solely with respect to the Company), Section 4.02(b)(ii), Section 4.03(a), Section 4.03(b)(i) (solely with respect to the Company), Section 4.03(d) and Section 4.10 shall be true and correct in all material respects when made and on and as of the Closing Date, as if made on and as of such date (except those representations and warranties that address matters only as of a particular date, which shall be true and correct in all respects as of that date). (Page 101)
Section 4.01 Organization; Standing and Power; Charter Documents; Subsidiaries. <omitted>
Section 4.02 Capital Structure.
<omitted>
Section 4.03 Authority; Non-Contravention; Governmental Consents; Board Approval; Anti-Takeover Statutes.
<omitted>
This Agreement <omitted> constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms
<omitted>
Section 4.05
Absence of Certain Changes or Events.
<omitted>
Section 4.10 Brokers’ and Finders’ Fees.
<omitted>
Section 9.02 Conditions to Obligations of Parent, US Holdco and Merger Sub. <omitted> (iii) the representations and warranties made in Section 4.05(a) shall be true and correct in all respects <omitted> (iv) the representations and warranties contained in the first sentence of Section 4.01(a) (solely with respect to the Company), Section 4.01(b) (solely with respect to the Company), Section 4.02(b)(ii), Section 4.03(a), Section 4.03(b)(i) (solely with respect to the Company), Section 4.03(d) and Section 4.10 shall be true and correct in all material respects (Page 101) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_38 | 2.1. Due Organization; Subsidiaries, Etc. <omitted>
2.2. Certificate of Incorporation and Bylaws. <omitted>
2.3.Capitalization, Etc. <omitted>
2.19. Authority; Binding Nature of Agreement. <omitted> The Company Board (at a meeting duly called and held) has unanimously <omitted> (d) authorized and approved the execution, delivery and performance by the Company of this Agreement and the consummation of the Transactions, including the Merger and (e) resolved to recommend that the stockholders of the Company adopt this Agreement and approve the Merger and the Transaction, which resolutions, subject to Section 5.1, have not been subsequently withdrawn or modified in a manner adverse to Parent. <omitted>
2.21. Merger Approval. <omitted>
2.23. Fairness Opinions. <omitted>
2.24. Financial Advisor. <omitted>
2.5. Absence of Changes. <omitted> Except as expressly contemplated by this Agreement, since January 1, 2021 through the date of this Agreement, (a) the Acquired Corporations have operated in all material respects in the ordinary course of business consistent with past practice (except for discussions, negotiations and transactions related to this Agreement or other potential strategic transactions) and (b) no Acquired Corporation has taken any action that would be prohibited by Section 4.2 (other than subsections 4.2(b)(iii), 4.2(b)(vii), 4.2(b)(viii), 4.2(b)(ix), 4.2(b)(x) or 4.2(b)(xvi) (solely with respect to the entry into or amendment of any Material Contract)), if taken or proposed to be taken after the date hereof. <omitted>
6.2. 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 Legal Requirements) 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) the representations and warranties of the Company set forth in (A) Section 2.3(a), Section 2.3(b), Section 2.3(c) and Section 2.3(d) of this Agreement shall have been accurate in all respects (other than for de minimis inaccuracies) as of the date of this Agreement and shall be accurate in all respects (other than for de minimis inaccuracies) at and as of the Closing as if made on and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (B) Sections 2.1, 2.2, 2.3(f), 2.19, 2.21, 2.23(a) (first sentence only), 2.23(b) (first sentence only), and 2.24 of this Agreement shall be accurate in all material respects as of the date of this Agreement (without giving effect to any qualification as to materiality, Material Adverse Effect or similar qualification set forth therein) and shall be accurate in all material respects as of the Closing as if made on and as of such time (without giving effect to any qualification as to materiality, Material Adverse Effect or similar qualification set forth therein), in each case except to the extent expressly made as of an earlier date, which case as of such date; (ii) the representations and warranties of the Company set forth in the first sentence of Section 2.5 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 as if made on and as of such time; and (iii) the representations and warranties of the Company set forth in this Agreement (other than those referred to in clauses “(i)” or “(ii)” above) 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 as if made on and as of such time, except where the failure of such representation or warranty to be accurate in all respects has not had and would not reasonably be expected to have, individually or in the aggregate, 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 (1) in the case of the standard for what constitutes a defined term hereunder and the use of such defined term herein, and (2) in the case of Company Disclosure Schedule requiring lists of “material” items as of the date hereof) 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 (iii)) only as of such date). (Page 61) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_53 | 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 written waiver by Parent (to the extent permitted by applicable Law)) at or prior to the Effective Time of the following conditions: (d) Representations and Warranties. Each of the representations and warranties of the Company set forth in <omitted> (iv) the other representations and warranties of Article III 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) in each case as -65-
of the date hereof and as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly is made as of an earlier date, in which case such representation and warranty shall be true and correct as of such specified date), except where the failures of any such representations and warranties to be so true and correct, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; (Pages 74-75)
Conditions to Obligations of Parent and Merger Sub <omitted> (iv) the other representations and warranties of Article III shall be true and correct in all respects <omitted> except where the failures of any such representations and warranties to be so true and correct, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; (Pages 74-75)
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 written waiver by Parent (to the extent permitted by applicable Law)) at or prior to the Effective Time of the following conditions: (d) Representations and Warranties. Each of the representations and warranties of the Company set forth in <omitted> (ii) Section 3.3(a) and Section 3.3(b) [Capitalization] shall be true and correct in all respects as of the date hereof and as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly is made as of an earlier date, in which case such representation and warranty shall be true and correct as of such specified date), other than for issuances permitted pursuant to this Agreement and other than for inaccuracies that, in the aggregate, do not increase the aggregate consideration payable by Parent pursuant to Article II in more than a de minimis respect (Page 74)
Conditions to Obligations of Parent and Merger Sub <omitted> Each of the representations and warranties of the Company set forth in <omitted> (ii) Section 3.3(a) and Section 3.3(b) [Capitalization] shall be true and correct in all respects <omitted> other than for inaccuracies that, in the aggregate, do not increase the aggregate consideration payable by Parent pursuant to Article II in more than a de minimis respect (Page 74)
Authority. <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> . The Board of Directors of the Company, at a duly called and held meeting, has <omitted> (ii) approved the execution, delivery and performance of this Agreement
<omitted>
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 written waiver by Parent (to the extent permitted by applicable Law)) at or prior to the Effective Time of the following conditions: (d) Representations and Warranties. Each of the representations and warranties of the Company set forth in (i) Section 3.1 [Organization and Qualification; Subsidiaries], Section 3.3(c) and (d) [Capitalization], Section 3.4 [Authority], Section 3.19 [Opinion of Financial Advisor], Section 3.20 [Brokers] and Section 3.21 [Takeover Statutes] shall be true and correct in all material respects as of the date hereof and as of the Effective Time as though made on and as of such date (except to the extent that any such representation or warranty expressly is made as of an earlier date, in which case such representation and warranty shall be true and correct as of such specified date) <omitted> (iii) Section 3.9(c)[Absence of Certain Changes or Events] shall be true and correct in all respects as of the date hereof and as of the Effective Time as though made on and as of such date (Page 74)
Authority. <omitted> This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms <omitted> . The Board of Directors of the Company, at a duly called and held meeting, has <omitted> (ii) approved the execution, delivery and performance of this Agreement
<omitted>
Conditions to Obligations of Parent and Merger Sub <omitted> Each of the representations and warranties of the Company set forth in (i) Section 3.1 [Organization and Qualification; Subsidiaries], Section 3.3(c) and (d) [Capitalization], Section 3.4 [Authority], Section 3.19 [Opinion of Financial Advisor], Section 3.20 [Brokers] and Section 3.21 [Takeover Statutes] shall be true and correct in all material respects <omitted> (iii) Section 3.9(c)[Absence of Certain Changes or Events] shall be true and correct in all respects (Page 74) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_44 | 9.2. Conditions to the Obligations of Bridge Bancorp under this Agreement. The obligations of Bridge Bancorp under this Agreement shall be further subject to the satisfaction of the following conditions at or prior to the Closing Date: 9.2.1.Representations and Warranties. <omitted> All other representations and warranties of DCB set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect on DCB set forth in such representations or warranties but, in each case, after giving effect to the lead in to Article IV) shall be true and correct in all respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date; provided, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on DCB. Bridge Bancorp shall have received a certificate signed on behalf of DCB by the Chief Executive Officer and the Chief Financial Officer of DCB to the foregoing effect. (Page 80)
9.2. Conditions to the Obligations of Bridge Bancorp under this Agreement. <omitted> All other representations and warranties of DCB set forth in this Agreement <omitted> shall be true and correct in all respects <omitted> provided, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, <omitted> has had or would reasonably be expected to have a Material Adverse Effect on DCB. (Page 80)
4.3. Capitalization. <omitted> 9.2. Conditions to the Obligations of Bridge Bancorp under this Agreement. The obligations of Bridge Bancorp under this Agreement shall be further subject to the satisfaction of the following conditions at or prior to the Closing Date: 9.2.1.Representations and Warranties. The representations and warranties of DCB set forth in Sections 4.3.1 <omitted> (in each case after giving effect to the lead in to Article IV) shall be true and correct (other than, in the case of Section 4.3.1, such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date (Page 80)
4.3. Capitalization. <omitted> 9.2. Conditions to the Obligations of Bridge Bancorp under this Agreement. <omitted> The representations and warranties of DCB set forth in Sections 4.3.1 <omitted> shall be true and correct (other than, in the case of Section 4.3.1, such failures to be true and correct as are de minimis) (Page 80)
4.2.Organization. <omitted> DCB owns all the capital stock of the DCB Subsidiaries, free and clear of any liens, claims, title defects, mortgages, pledges, charges, encumbrances and security interests whatsoever (“Liens”). Each DCB Subsidiary (other than Dime Community Bank) is a corporation, limited liability company or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and each has all requisite company, partnership or corporate (as applicable) power and authority to own or lease its properties and assets and to carry on its business as now conducted. <omitted> 4.3.Capitalization. <omitted> 4.4.Authority; No Violation. 4.4.1 <omitted> The execution and delivery of this Agreement by DCB and the consummation by DCB of the transactions contemplated hereby, including the Merger, have been duly and validly approved by the Board of Directors of DCB, <omitted> This Agreement has been duly and validly executed and delivered by DCB, and subject to approval by the shareholders of DCB by the Requisite DCB Vote and receipt of the Regulatory Approvals, and assuming due and valid execution and delivery of this Agreement by Bridge Bancorp, constitutes a valid and binding obligation of DCB, enforceable against DCB in accordance with its terms <omitted> 4.24.No Material Adverse Effect. <omitted> 9.2. Conditions to the Obligations of Bridge Bancorp under this Agreement. The obligations of Bridge Bancorp under this Agreement shall be further subject to the satisfaction of the following conditions at or prior to the Closing Date: 9.2.1. Representations and Warranties. The representations and warranties of DCB set forth in <omitted> the second sentence of 4.3.2, the first sentence of 4.3.3 and 4.24 (in each case after giving effect to the lead in to Article IV) shall be true and correct <omitted> in each case as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, and the representations and warranties of DCB set forth in the first sentence of Sections 4.2.1 and 4.2.2, the second and third sentence of Section 4.2.3, and Section 4.4.1 (in each case, after giving effect to the lead in to Article IV) shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date. (Page 80)
4.2.Organization. <omitted> DCB owns all the capital stock of the DCB Subsidiaries, free and clear of any liens, claims, title defects, mortgages, pledges, charges, encumbrances and security interests whatsoever (“Liens”).
<omitted> 4.3.Capitalization.
<omitted> 4.4.Authority; No Violation. 4.4.1 <omitted> The execution and delivery of this Agreement by DCB and the consummation by DCB of the transactions contemplated hereby, including the Merger, have been duly and validly approved by the Board of Directors of DCB, <omitted> This Agreement has been duly and validly executed and delivered by DCB, and subject to approval by the shareholders of DCB by the Requisite DCB Vote and receipt of the Regulatory Approvals, and assuming due and valid execution and delivery of this Agreement by Bridge Bancorp, constitutes a valid and binding obligation of DCB, enforceable against DCB in accordance with its terms <omitted>
4.24.No Material Adverse Effect. <omitted>
9.2. Conditions to the Obligations of Bridge Bancorp under this Agreement. <omitted> The representations and warranties of DCB set forth in <omitted> the second sentence of 4.3.2, the first sentence of 4.3.3 and 4.24 <omitted> shall be true and correct <omitted> and the representations and warranties of DCB set forth in the first sentence of Sections 4.2.1 and 4.2.2, the second and third sentence of Section 4.2.3, and Section 4.4.1 <omitted> shall be true and correct in all material respects (Page 80) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_134 | Conditions of the Offer Notwithstanding any other term of the Offer or this Agreement and in addition to (and not in limitation of) Merger Subsidiary’s right to extend and amend the Offer pursuant to the provisions of the Agreement, Parent shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the 1934 Act (relating to Parent’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in the Offer, unless, immediately prior to the then applicable Offer Expiration Time: <omitted> (iii) each of the other representations and warranties of the Company set forth in the Merger Agreement shall be true and correct in all respects as of the date of this Agreement and as of the consummation of the Offer, as if made at such time, except to the extent such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), other than, in the case of clause (iii), for such failures to be true and correct that, individually or in the aggregate, would not have a Material Adverse Effect (it being understood that for this purpose all references to the term “Material Adverse Effect” and other qualifications based on the word “material,” set forth in any such representations and warranties shall be disregarded). Solely for purposes of clause (i)(x) of this paragraph (d), if one or more inaccuracies in the sections referred to in clause (i) of this paragraph (d) would cause the Aggregate Consideration to increase by $25,000,000 or more, such inaccuracy or inaccuracies will not be considered de minimis; (Page 45)
Conditions of the Offer <omitted> (iii) each of the other representations and warranties of the Company set forth in the Merger Agreement shall be true and correct in all respects <omitted> other than, in the case of clause (iii), for such failures to be true and correct that, individually or in the aggregate, would not have a Material Adverse Effect (Page 45)
Conditions of the Offer Notwithstanding any other term of the Offer or this Agreement and in addition to (and not in limitation of) Merger Subsidiary’s right to extend and amend the Offer pursuant to the provisions of the Agreement, Parent shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the 1934 Act (relating to Parent’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in the Offer, unless, immediately prior to the then applicable Offer Expiration Time: <omitted> (i) (x) the representations and warranties of the Company set forth in Section 4.05(a) (Capitalization) (other than for inaccuracies that are de minimis relative to the fully-diluted equity capitalization of the Company) and (y) Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date of the Merger Agreement and as of the consummation of the Offer, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date) (Page 45)
Conditions of the Offer <omitted> (i) (x) the representations and warranties of the Company set forth in Section 4.05(a) (Capitalization) (other than for inaccuracies that are de minimis relative to the fully-diluted equity capitalization of the Company) (Page 45)
Section 4.01.
Corporate Existence and Power.
(b)
The Company is a corporation duly incorporated and validly existing under the laws of the State of Delaware and has all corporate powers and
all governmental licenses, authorizations, Permits, consents and approvals required to carry on its business as currently conducted, except for those powers,
licenses, authorizations, Permits, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
<omitted>
Section 4.02.
Corporate Authorization.
Assuming the representations and warranties in
Section 5.09
are true and correct and the transactions
contemplated hereby are consummated and the Merger
becomes effective in accordance with Section 251(h) of the DGCL, the Company has all requisite corporate
power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Merger in accordance with Section 251(h)
of the DGCL. Assuming the representations and warranties in Section 5.09 are true and correct and the transactions contemplated hereby are consummated and the Merger becomes effective in accordance with Section 251(h) of the DGCL, the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby (subject to the filing and recordation of appropriate merger documents as required by the DGCL).
<omitted>
This Agreement has been duly and validly executed and delivered
by the
Company and, assuming the due authorization, execution and delivery by Parent and Merger Subsidiary, constitutes a legal, valid
and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency (including all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting creditors’ rights generally and subject to the effect of general principles of equity
(regardless of whether
considered in a proceeding at law or in equity) (the “
Bankruptcy and Equity Exception
”).
<omitted>
Conditions of the Offer
Notwithstanding any other term of the Offer or this Agreement and in addition to (and not in limitation of) Merger Subsidiary’s right to extend and amend the Offer pursuant to the provisions of the Agreement, Parent shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the 1934 Act (relating to Parent’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares validly tendered and not validly withdrawn in the Offer, unless, immediately prior to the then applicable Offer Expiration Time:
<omitted>
(d) (i) (x) the representations and warranties of the Company set forth in <omitted> (y) Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the date of the Merger Agreement and as of the consummation of the Offer, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date) (ii) the representations and warranties of the Company set forth in Section 4.01 (Corporate Existence), Section 4.02 (Corporate Authorization), Section 4.05 (other than Section 4.05(a)) (Capitalization) and Section 4.23 (Finders’ Fees) shall be true and correct in all material respects as of the date of the Merger Agreement and as of the consummation of the Offer, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date) and (Page 45)
Section 4.01.
Corporate Existence and Power.
(b)
The Company is a corporation duly incorporated and validly existing under the laws of the State of Delaware
<omitted>
Section 4.02.
Corporate Authorization.
<omitted> the Company has all requisite corporate
power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Merger in accordance with Section 251(h)
of the DGCL. Assuming the representations and warranties in Section 5.09 are true and correct and the transactions contemplated hereby are consummated and the Merger becomes effective in accordance with Section 251(h) of the DGCL, the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby (subject to the filing and recordation of appropriate merger documents as required by the DGCL).
<omitted>
This Agreement <omitted> constitutes a legal, valid
and binding obligation of the
Company, enforceable against the Company
<omitted>
Conditions of the Offer <omitted>
(d) (i) (x) the representations and warranties of the Company set forth in <omitted> (y) Section 4.10(b) (Absence of Certain Changes) shall be true and correct in all respects <omitted> (ii) the representations and warranties of the Company set forth in Section 4.01 (Corporate Existence), Section 4.02 (Corporate Authorization), Section 4.05 (other than Section 4.05(a)) (Capitalization) and Section 4.23 (Finders’ Fees) shall be true and correct in all material respects (Page 45) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_106 | 4.01 Disclosure Schedules; Standards. <omitted> (b) Standards. No representation or warranty of a Party contained in Section 4.02 or 4.03 (other than the representations and warranties in (i) Sections 4.02(b) or 4.03(b), which shall be true and correct with respect to it (except for such failures to be true and correct which are de minimis), (ii) Sections 4.02(d), 4.02(e), 4.02(i), 4.03(c), and 4.03(d), which shall be true and correct in all material respects with respect to it, and (iii) Sections 4.02(g)(viii)(B) and 4.03(f)(iv), which shall be true and correct in all respects with respect to it), shall be deemed untrue or incorrect, and no Party hereto shall be deemed to have breached a representation or warranty, in each case for all purposes hereunder, including the conditions set forth in Section 6.02(a) and 6.03(a) hereof, as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or taken together with all other facts, circumstances or events inconsistent with any representation or warranty contained in Sections 4.02 or 4.03, as applicable, has had or is reasonably likely to have a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable; provided, that solely for purposes of determining whether the Company has breached a representation or warranty as of the date hereof (and not for any other purpose, including the conditions set forth in Section 6.03(a)), the representations and warranties made in Section 4.02(h) and Section <omitted> 4.02(k) shall be true and correct in all material respects with respect to it; provided, further, that for purposes of determining whether a representation or warranty is untrue or incorrect for all purposes hereunder, any qualification or exception for, or reference to, materiality or similar terms in any representation or warranty (other than Section 4.02(g)(viii)(B), the last sentence of Section 4.02(g)(i), Section 4.02(k)(i)(A), Section 4.02(k)(vii), Section 4.02(m)(i), the last sentence of Section 4.03(f)(i) and Section 4.03(f)(iv)) shall be disregarded. <omitted>
6.03 Conditions to Obligation of Parent. The obligation of Parent to consummate the Merger is also subject to the fulfillment or written waiver by Parent prior to the Effective Time of each of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 4.02, after giving effect to Section 4.01 and the lead-in to Section 4.02, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except that representations and warranties that by their terms speak as of the date of this Agreement or some other date shall be true and correct as of such date) and (Page 67)
4.01 Disclosure Schedules; Standards. <omitted> No representation or warranty of a Party contained in Section 4.02 <omitted> shall be deemed to have breached a representation or warranty <omitted> as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event <omitted> has had or is reasonably likely to have a Company Material Adverse Effect <omitted>
6.03 Conditions to Obligation of Parent. <omitted> The representations and warranties of the Company <omitted> after giving effect to Section 4.01 <omitted> shall be true and correct (Page 67)
4.01 Disclosure Schedules; Standards. <omitted> (b) Standards. No representation or warranty of a Party contained in Section 4.02 or 4.03 (other than the representations and warranties in (i) Sections 4.02(b) or 4.03(b), which shall be true and correct with respect to it (except for such failures to be true and correct which are de minimis), (ii) Sections 4.02(d), 4.02(e), 4.02(i), 4.03(c), and 4.03(d), which shall be true and correct in all material respects with respect to it, and (iii) Sections 4.02(g)(viii)(B) and 4.03(f)(iv), which shall be true and correct in all respects with respect to it), shall be deemed untrue or incorrect, and no Party hereto shall be deemed to have breached a representation or warranty, in each case for all purposes hereunder, including the conditions set forth in Section 6.02(a) and 6.03(a) hereof, as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or taken together with all other facts, circumstances or events inconsistent with any representation or warranty contained in Sections 4.02 or 4.03, as applicable, has had or is reasonably likely to have a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable; provided, that solely for purposes of determining whether the Company has breached a representation or warranty as of the date hereof (and not for any other purpose, including the conditions set forth in Section 6.03(a)), the representations and warranties made in Section 4.02(h) and Section <omitted> 4.02(k) shall be true and correct in all material respects with respect to it; provided, further, that for purposes of determining whether a representation or warranty is untrue or incorrect for all purposes hereunder, any qualification or exception for, or reference to, materiality or similar terms in any representation or warranty (other than Section 4.02(g)(viii)(B), the last sentence of Section 4.02(g)(i), Section 4.02(k)(i)(A), Section 4.02(k)(vii), Section 4.02(m)(i), the last sentence of Section 4.03(f)(i) and Section 4.03(f)(iv)) shall be disregarded.
4.02 Representations and Warranties of the Company. <omitted> (b) Company Capital Stock. <omitted> The authorized capital stock of the Company consists of 85,000,000 shares of Company CommonStock, of which 22,320,230 shares were issued and outstanding as of the close of business on March 18, 2021; 2,000,000 shares of Company Non-Voting Common Stock, of which 1,467,155 shares were issued and outstanding as of the close of business on March 18, 2021; and 2,000,000 shares of Company Preferred Stock, of which no shares were outstanding as of the close of business on March 18, 2021. <omitted>
6.03 Conditions to Obligation of Parent. The obligation of Parent to consummate the Merger is also subject to the fulfillment or written waiver by Parent prior to the Effective Time of each of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 4.02, after giving effect to Section 4.01 and the lead-in to Section 4.02, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except that representations and warranties that by their terms speak as of the date of this Agreement or some other date shall be true and correct as of such date) and (Page 67)
4.01 Disclosure Schedules; Standards. <omitted> the representations and warranties in <omitted> Sections 4.02(b) <omitted> which shall be true and correct with respect to it (except for such failures to be true and correct which are de minimis) <omitted>
4.02 Representations and Warranties of the Company. <omitted> (b) Company Capital Stock. <omitted> The authorized capital stock of the Company consists of 85,000,000 shares of Company CommonStock, of which 22,320,230 shares were issued and outstanding as of the close of business on March 18, 2021; 2,000,000 shares of Company Non-Voting Common Stock, of which 1,467,155 shares were issued and outstanding as of the close of business on March 18, 2021; and 2,000,000 shares of Company Preferred Stock, of which no shares were outstanding as of the close of business on March 18, 2021. <omitted>
6.03 Conditions to Obligation of Parent. <omitted> The representations and warranties of the Company <omitted> after giving effect to Section 4.01 <omitted> shall be true and correct (Page 67)
4.01 Disclosure Schedules; Standards. <omitted> (b) Standards. No representation or warranty of a Party contained in Section 4.02 or 4.03 (other than the representations and warranties in (i) Sections 4.02(b) or 4.03(b), which shall be true and correct with respect to it (except for such failures to be true and correct which are de minimis), (ii) Sections 4.02(d), 4.02(e), 4.02(i), 4.03(c), and 4.03(d), which shall be true and correct in all material respects with respect to it, and (iii) Sections 4.02(g)(viii)(B) and 4.03(f)(iv), which shall be true and correct in all respects with respect to it), shall be deemed untrue or incorrect, and no Party hereto shall be deemed to have breached a representation or warranty, in each case for all purposes hereunder, including the conditions set forth in Section 6.02(a) and 6.03(a) hereof, as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or taken together with all other facts, circumstances or events inconsistent with any representation or warranty contained in Sections 4.02 or 4.03, as applicable, has had or is reasonably likely to have a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable; provided, that solely for purposes of determining whether the Company has breached a representation or warranty as of the date hereof (and not for any other purpose, including the conditions set forth in Section 6.03(a)), the representations and warranties made in Section 4.02(h) and Section <omitted> 4.02(k) shall be true and correct in all material respects with respect to it; provided, further, that for purposes of determining whether a representation or warranty is untrue or incorrect for all purposes hereunder, any qualification or exception for, or reference to, materiality or similar terms in any representation or warranty (other than Section 4.02(g)(viii)(B), the last sentence of Section 4.02(g)(i), Section 4.02(k)(i)(A), Section 4.02(k)(vii), Section 4.02(m)(i), the last sentence of Section 4.03(f)(i) and Section 4.03(f)(iv)) shall be disregarded.
4.02 Representations and Warranties of the Company. <omitted>
(d) Corporate Power. <omitted> the Company has all requisite corporate power and authority and, other than receiving the Company Shareholder Approval, has taken all corporate action necessary in order to execute, deliver and perform each of its obligations under this Agreement and to consummate the Merger, the Bank Merger and the transactions contemplated hereby. <omitted>
(e) Corporate Authority. As of the date hereof, the Company Board has, by resolutions duly adopted at a meeting duly called and held, (i) determined that this Agreement, the Merger and the other transactions contemplated hereby are fair to and in the best interests of the Company and its shareholders, (ii) approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby and (iii) resolved that such matters be <omitted> submitted for consideration by its shareholders at a special meeting of such shareholders and that such matter be recommended for approval at such special meeting. The Company has duly authorized, executed and delivered this Agreement, and this Agreement (assuming due authorization, execution and delivery by Parent) is a valid and legally binding obligation of the Company, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors’ rights or to general equity principles (the “Bankruptcy and Equity Exception”). The Company Board has received an opinion (which, if initially rendered verbally, has been or will be confirmed by a written opinion, dated the same date) of its financial advisor, Keefe, Bruyette & Woods, Inc., to the effect that, as of the date of such opinion, and based upon and subject to the factors, assumptions, and limitations set forth therein, the Exchange Ratio is fair from a financial point of view to the holders of Company Common Stock. <omitted>
(g) Reports; Financial Statements. <omitted> (viii) <omitted> (B) no event has occurred or circumstance arisen that, individually or taken together with all other facts, circumstances and events <omitted> has had, or is reasonably likely to have, a Company Material Adverse Effect. <omitted>
(i) Regulatory Matters. <omitted>
6.03 Conditions to Obligation of Parent. The obligation of Parent to consummate the Merger is also subject to the fulfillment or written waiver by Parent prior to the Effective Time of each of the following conditions: (a) Representations and Warranties. (i) The representations and warranties of the Company set forth in Section 4.02, after giving effect to Section 4.01 and the lead-in to Section 4.02, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except that representations and warranties that by their terms speak as of the date of this Agreement or some other date shall be true and correct as of such date) and (Page 67)
4.01 Disclosure Schedules; Standards. <omitted> (i) Sections 4.02(b) <omitted> which shall be true and correct with respect to it (except for such failures to be true and correct which are de minimis), (ii) Sections 4.02(d), 4.02(e), 4.02(i) <omitted> which shall be true and correct in all material respects with respect to it, and (iii) Sections 4.02(g)(viii)(B) <omitted> which shall be true and correct in all respects with respect to it <omitted>
4.02 Representations and Warranties of the Company. <omitted>
<omitted>
(d) Corporate Power. <omitted> the Company has all requisite corporate power and authority <omitted> to execute, deliver and perform each of its obligations under this Agreement and to consummate the Merger <omitted>
(e) Corporate Authority. As of the date hereof, the Company Board has <omitted> approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby <omitted> . <omitted> this Agreement <omitted> is a valid and legally binding obligation of the Company, enforceable against it in accordance with its terms <omitted> . The Company Board has received an opinion (which, if initially rendered verbally, has been or will be confirmed by a written opinion, dated the same date) of its financial advisor <omitted> to the effect that <omitted> the Exchange Ratio is fair from a financial point of view to the holders of
Company Common Stock. <omitted>
(g) Reports; Financial Statements. <omitted> (viii) <omitted> (B) no event has occurred or circumstance arisen that, individually or taken together with all other facts, circumstances and events <omitted> has had, or is reasonably likely to have, a Company Material Adverse Effect. <omitted>
(i) Regulatory Matters. <omitted>
6.03 Conditions to Obligation of Parent. <omitted> The representations and warranties of the Company <omitted> after giving effect to Section 4.01 <omitted> shall be true and correct (Page 67) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_29 | Section 3.1 Organization. <omitted>
Section 3.2 Capital Stock. <omitted>
Section 3.3 Corporate Authority Relative to This Agreement; Consents and Approvals; No Violation. <omitted> The Company Board has unanimously (i) declared advisable and approved this Agreement and the Merger, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the Mergers, (iii) resolved to recommend that the stockholders of the Company approve the Merger (the “Company Recommendation”) and (iv) directed that the approval of the Merger be submitted for consideration by the Company’s stockholders at a meeting thereof. This Agreement has been duly and validly executed and delivered by the Company and Company OP, and assuming this Agreement constitutes the legal, valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the legal, valid and binding agreement of the Company and Company OP and is enforceable against the Company and Company OP in accordance with its terms, except as such enforcement may be subject to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other similar Laws of general applicability affecting creditors’ rights generally and the availability of equitable relief and any implied covenant of good faith and fair dealing (the “Enforceability Exceptions”). <omitted>
Section 3.11 Absence of Certain Changes or Events. <omitted>
Section 3.19 Finders or Brokers. <omitted>
Section 6.3 Conditions to Obligation of Parent and Merger Sub to Effect the Mergers. The obligation of Parent and Merger Sub to effect the Mergers is further subject to the fulfillment (or the waiver by Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of the following conditions: (a) (i) Other than the Fundamental Company Representations, the representations and warranties of the Company set forth in Article III that are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the Closing Date as though made at and as of the Closing Date, (ii) other than the Fundamental Company Representations, the representations and warranties of the Company set forth in Article III that are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) Section 3.2(a) shall be true and correct in all but de minimis respects at and as of the Closing Date as though made at and as of the Closing Date and (iv) the Fundamental Company Representations, other than Section 3.2(a), shall be true and correct in all material respects at and as of the Closing Date as though made at and as of the Closing Date (disregarding all qualifications contained therein relating to materiality); provided that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company and Company OP shall have performed and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Effective Time. (c) Since the execution of this Agreement, there has not been a Material Adverse Effect. <omitted> “Fundamental Company Representations” means the representations and warranties of the Company set forth in Section 3.1(a), Section 3.2, Section 3.3(a), Section 3.11(c) and Section 3.19. (Page 30) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_107 | Offer Conditions Notwithstanding any other provisions of the Offer, but subject to the terms and conditions set forth in this Agreement, in addition to Merger Sub’s right or obligations to extend, or right to amend or terminate, the Offer in accordance with the provisions of this Agreement, neither Parent nor Merger Sub shall 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 (relating to Merger Sub’s obligation to pay for or return Tendered Shares promptly after termination or withdrawal of the Offer), pay for any Tendered Shares, if as of immediately prior to one minute after 11:59 p.m., New York City time, on the Expiration Date (as it may have been extended pursuant to Section 2.1(e)) any of the conditions set forth below shall not be satisfied or waived in writing by Parent and Merger Sub (to the extent waivable by Parent and Merger Sub): <omitted> (c) none of the following events, conditions, circumstances, state of facts or developments shall exist or have occurred and be continuing: <omitted> (4) any representations and warranties of the Company set forth in this Agreement (other than those listed in the preceding clause (c)(iv)(1), clause (c)(iv)(2), or clause (c)(iv)(3)) shall not be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Company Material Adverse Effect,” “in all material respects,” “in any material respect,” “material” or “materially”) as of the date of this Agreement and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (c)(iv)(4), where the failure of any such representations and warranties to be so true and correct would not, and would not be reasonably expected to, have, individually or in the aggregate, a Company Material Adverse Effect; (Page 94)
Offer Conditions <omitted> (4) any representations and warranties of the Company set forth in this Agreement <omitted> shall not be true and correct <omitted> except, in the case of this clause (c)(iv)(4), where the failure of any such representations and warranties to be so true and correct would not, and would not be reasonably expected to, have, individually or in the aggregate, a Company Material Adverse Effect; (Page 94)
SECTION 5.2. Capitalization. <omitted> Offer Conditions Notwithstanding any other provisions of the Offer, but subject to the terms and conditions set forth in this Agreement, in addition to Merger Sub’s right or obligations to extend, or right to amend or terminate, the Offer in accordance with the provisions of this Agreement, neither Parent nor Merger Sub shall 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 (relating to Merger Sub’s obligation to pay for or return Tendered Shares promptly after termination or withdrawal of the Offer), pay for any Tendered Shares, if as of immediately prior to one minute after 11:59 p.m., New York City time, on the Expiration Date (as it may have been extended pursuant to Section 2.1(e)) any of the conditions set forth below shall not be satisfied or waived in writing by Parent and Merger Sub (to the extent waivable by Parent and Merger Sub): <omitted> (c) none of the following events, conditions, circumstances, state of facts or developments shall exist or have occurred and be continuing: <omitted> (2) any of the representation and warranties of the Company set forth in Section 5.2 shall not be true and correct in all respects (other than de minimis inaccuracies) as of the date of this Agreement and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (Page 94)
SECTION 5.2. Capitalization. <omitted> Offer Conditions <omitted> (2) any of the representation and warranties of the Company set forth in Section 5.2 shall not be true and correct in all respects (other than de minimis inaccuracies) (Page 94)
SECTION 5.1. Organization. The Company (a) is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware, (b) has all requisite corporate power and authority to carry on its business as now conducted, and (c) is duly qualified or licensed to do business and (where applicable) is in good standing as a foreign corporation in each jurisdiction where the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified, licensed or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
<omitted>
SECTION 5.2. Capitalization.
<omitted>
SECTION 5.3. Authorization; No Conflict. <omitted> At a meeting duly called and held, the Company Board unanimously (i) determined that this Agreement and the Transactions are advisable, fair to and in the best interests of the Company and the Stockholders, (ii) approved and declared advisable this Agreement and the Transactions, <omitted> This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, is enforceable against the Company in accordance with its terms
<omitted>
SECTION 5.4. Subsidiaries.
<omitted>
(b) All of the outstanding capital stock or other voting securities of, or other ownership interests in, the Company Subsidiaries is owned by the Company, directly or indirectly, free and clear of any Liens or any other limitations or restrictions (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities or ownership interests, but excluding any such restriction on the right to sell or otherwise dispose of such capital stock or other voting securities under applicable securities Laws).
<omitted>
SECTION 5.7. Absence of Material Adverse Effect.
Since July 21, 2020 through the date of this Agreement, the Company and the Company Subsidiaries have conducted their business in the ordinary course of business consistent with past practice (other than as resulting from the COVID-19 pandemic or to comply with any COVID-19 Measures) and there has not been or occurred: (a) any event, condition, change, occurrence or development of a state of facts, individually or in the aggregate with all other events, conditions, changes, occurrences or developments of a state of facts, that has had, or would reasonably be expected to have, a Company Material Adverse Effect; or
<omitted>
SECTION 5.10. Broker’s or Finder’s Fees.
Except for Centerview Partners LLC, no agent, broker, investment banker, finder, Person or firm acting on behalf of the Company or any Company Subsidiary or under the Company’s or any Company Subsidiary’s authority is or will be entitled to any advisory, commission or broker’s or finder’s fee or similar fee or commission or reimbursement of expenses from the Company or any of its Affiliates in connection with any of the Transactions.
<omitted>
SECTION 5.13. Opinion of Financial Advisor.
The Company Board has received the opinion of Centerview Partners LLC that, as of the date of such opinion and based on and subject to the matters set forth therein, including the various assumptions made, procedures followed, matters considered, and qualifications and limitations set forth therein, the Offer Price of $60.00 per share of Company Common Stock to be paid to the holders of Company Common Stock (other than the holders of Excluded Shares and other than any shares of Company Common Stock held by any Affiliate of the Company or Parent) pursuant to this Agreement is fair, from a financial point of view, to such holders, and, as of the date hereof, such opinion has not been withdrawn, revoked or modified.
<omitted>
SECTION 5.23. Takeover Provisions.
Assuming the accuracy of Parent’s and Merger Sub’s representation and warranty set forth in Section 6.7, the Company Board has taken and will take all actions so that the restrictions (whether procedural, voting, approval, fairness or otherwise) applicable to business combinations contained in Section 203 of the DGCL and any other Takeover Provisions are, and will be, inapplicable to the execution, delivery and performance of this Agreement, and the timely consummation of the Offer, the Merger and any other Transaction and will not restrict, impair or delay the ability of Parent or Merger Sub to vote or otherwise exercise all rights as a Stockholder. No “fair price,” “moratorium,” “control share acquisition” or other similar Takeover Provisions or any anti-takeover provision in the Company’s certificate of incorporation or bylaws is, or at the Effective Time will be, applicable to the Company Securities, the Offer, the Merger or the other Transactions.
<omitted>
Offer Conditions Notwithstanding any other provisions of the Offer, but subject to the terms and conditions set forth in this Agreement, in addition to Merger Sub’s right or obligations to extend, or right to amend or terminate, the Offer in accordance with the provisions of this Agreement, neither Parent nor Merger Sub shall 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 (relating to Merger Sub’s obligation to pay for or return Tendered Shares promptly after termination or withdrawal of the Offer), pay for any Tendered Shares, if as of immediately prior to one minute after 11:59 p.m., New York City time, on the Expiration Date (as it may have been extended pursuant to Section 2.1(e)) any of the conditions set forth below shall not be satisfied or waived in writing by Parent and Merger Sub (to the extent waivable by Parent and Merger Sub):
<omitted>
(c) none of the following events, conditions, circumstances, state of facts or developments shall exist or have occurred and be continuing: <omitted>
(iv) (1) any of the representations and warranties of the Company set forth in Section 5.1, Section 5.3(a), Section 5.3(b)(i), Section 5.4, Section 5.10, Section 5.13 and Section 5.23 shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date)
<omitted>
(3) any of the representations and warranties of the Company set forth in Section 5.7(a) shall not be true and correct in all respects as of the date of this Agreement and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) (Page 94)
SECTION 5.1. Organization. The Company (a) is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware, (b) has all requisite corporate power and authority to carry on its business as now conducted, and (c) is duly qualified or licensed to do business
<omitted>
SECTION 5.2. Capitalization. <omitted>
SECTION 5.3. Authorization; No Conflict. <omitted> At a meeting duly called and held, the Company Board unanimously (i) determined that this Agreement and the Transactions are advisable, fair to and in the best interests of the Company and the Stockholders, (ii) approved and declared advisable this Agreement and the Transactions, <omitted> This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company and, <omitted> is enforceable against the Company in accordance with its terms
<omitted>
SECTION 5.4. Subsidiaries.
<omitted>
(b) All of the outstanding capital stock or other voting securities of, or other ownership interests in, the Company Subsidiaries is owned by the Company, directly or indirectly, free and clear of any Liens or any other limitations or restrictions
<omitted>
SECTION 5.7. Absence of Material Adverse Effect.
Since July 21, 2020 through the date of this Agreement, the Company and the Company Subsidiaries have conducted their business in the ordinary course of business consistent with past practice (other than as resulting from the COVID-19 pandemic or to comply with any COVID-19 Measures) and there has not been or occurred: (a) any event, condition, change, occurrence or development of a state of facts, individually or in the aggregate with all other events, conditions, changes, occurrences or developments of a state of facts, that has had, or would reasonably be expected to have, a Company Material Adverse Effect; or
<omitted>
SECTION 5.10. Broker’s or Finder’s Fees.
Except for Centerview Partners LLC, no agent, broker, investment banker, finder, Person or firm acting on behalf of the Company or any Company Subsidiary or under the Company’s or any Company Subsidiary’s authority is or will be entitled to any advisory, commission or broker’s or finder’s fee or similar fee or commission or reimbursement of expenses from the Company or any of its Affiliates in connection with any of the Transactions.
<omitted>
SECTION 5.13. Opinion of Financial Advisor.
The Company Board has received the opinion of Centerview Partners LLC that, as of the date of such opinion and based on and subject to the matters set forth therein, <omitted> the Offer Price of $60.00 per share of Company Common Stock to be paid to the holders of Company Common Stock <omitted> pursuant to this Agreement is fair, from a financial point of view, to such holders, and, as of the date hereof, such opinion has not been withdrawn, revoked or modified.
<omitted>
SECTION 5.23. Takeover Provisions.
<omitted> the Company Board has taken and will take all actions so that the restrictions <omitted> applicable to business combinations contained in Section 203 of the DGCL and any other Takeover Provisions are, and will be, inapplicable to the execution, delivery and performance of this Agreement, and the timely consummation of the Offer, the Merger and any other Transaction and will not restrict, impair or delay the ability of Parent or Merger Sub to vote or otherwise exercise all rights as a Stockholder. No “fair price,” “moratorium,” “control share acquisition” or other similar Takeover Provisions or any anti-takeover provision in the Company’s certificate of incorporation or bylaws is, or at the Effective Time will be, applicable to the Company Securities, the Offer, the Merger or the other Transactions.
<omitted>
Offer Conditions <omitted> (iv) (1) any of the representations and warranties of the Company set forth in Section 5.1, Section 5.3(a), Section 5.3(b)(i), Section 5.4, Section 5.10, Section 5.13 and Section 5.23 shall not be true and correct in all material respects <omitted> (3) any of the representations and warranties of the Company set forth in Section 5.7(a) shall not be true and correct in all respects (Page 94) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_62 | CONDITIONS TO THE OFFER <omitted> Notwithstanding any other term of the Offer or this Agreement, Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act (relating to the obligation of Purchaser to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)), to pay for any Shares validly tendered and not validly withdrawn prior to any then-scheduled Expiration Date in connection with the Offer if, immediately prior to the then-scheduled Expiration Date: <omitted> (c) any of the following conditions shall exist: <omitted> (ii) The representations and warranties of the Company <omitted> (III) set forth in this Agreement, other than those described in clauses (I) and (II) above, shall not be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Expiration Date as though made as of the Expiration Date, except, in the case of this clause (B), where the failure of such representations and warranties to be so true and correct would not have a Company Material Adverse Effect; provided in each case that representations and warranties made as of a specific date shall be required to be so true and correct (subject to such qualifications) as of such date only (Page 66)
CONDITIONS TO THE OFFER <omitted> Purchaser shall not be required to <omitted> accept for payment or <omitted> to pay for any Shares validly tendered and not validly withdrawn prior to any then-scheduled Expiration Date in connection with the Offer if, immediately prior to the then-scheduled Expiration Date: <omitted> (c) <omitted> (ii) The representations and warranties of the Company <omitted> (III) set forth in this Agreement, other than those described in clauses (I) and (II) above, shall not be true and correct <omitted> , except <omitted> where the failure of such representations and warranties to be so true and correct would not have a Company Material Adverse Effect (Page 66)
CONDITIONS TO THE OFFER <omitted> Notwithstanding any other term of the Offer or this Agreement, Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act (relating to the obligation of Purchaser to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)), to pay for any Shares validly tendered and not validly withdrawn prior to any then-scheduled Expiration Date in connection with the Offer if, immediately prior to the then-scheduled Expiration Date: <omitted> (c) any of the following conditions shall exist: <omitted> (ii) The representations and warranties of the Company (I) set forth in the first sentence of Section 3.2(a) (Capitalization) and Section 3.2(b) (Capitalization) shall not be true and correct in all respects (except for only de minimis inaccuracies) <omitted> as of the date of this Agreement and as of the Expiration Date as though made as of the Expiration Date (Page 65)
CONDITIONS TO THE OFFER <omitted> Purchaser shall not be required to <omitted> accept for payment or <omitted> to pay for any Shares validly tendered and not validly withdrawn prior to any then-scheduled Expiration Date in connection with the Offer if, immediately prior to the then-scheduled Expiration Date: <omitted> (c) <omitted> (ii) The representations and warranties of the Company (I) set forth in the first sentence of Section 3.2(a) (Capitalization) <omitted> shall not be true and correct in all respects (except for only de minimis inaccuracies) (Page 65)
3.3 Authorization; No Conflict. (a) <omitted> This Agreement has been duly executed and delivered by the Company and assuming due execution and delivery by Parent and Purchaser constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms <omitted>
(b) The Company Board, at a meeting duly called and held, and as of the Agreement Date not subsequently rescinded or modified in any way, duly adopted resolutions unanimously (i) approving, adopting and declaring advisable this Agreement <omitted>
CONDITIONS TO THE OFFER <omitted> Notwithstanding any other term of the Offer or this Agreement, Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act (relating to the obligation of Purchaser to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)), to pay for any Shares validly tendered and not validly withdrawn prior to any then-scheduled Expiration Date in connection with the Offer if, immediately prior to the then-scheduled Expiration Date: <omitted> (c) any of the following conditions shall exist: <omitted> (ii) The representations and warranties of the Company (I) set forth in the first sentence of Section 3.2(a) (Capitalization) and Section 3.2(b) (Capitalization) shall not be true and correct in all respects (except for only de minimis inaccuracies) or Section 3.1 (Organization), Section 3.3(a) (Authorization), Section 3.3(b) (Authorization), Section 3.3(c)(i) (Authorization), Section 3.20 (Broker’s or Finder’s Fees), Section 3.21 (Opinion of Financial Advisor), Section 3.22 (Inapplicability of Anti-takeover Statute) and Section 3.23 (No Vote Required) shall not be true and correct in all material respects, in each case in this clause (I) as of the date of this Agreement and as of the Expiration Date as though made as of the Expiration Date, (II) set forth in Section 3.6 (Absence of Material Changes) shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made as of the Expiration Date without disregarding the “Company Material Adverse Effect” qualification set forth therein (Pages 65-66)
3.3 Authorization; No Conflict. (a) <omitted> This Agreement has been duly executed and delivered by the Company and assuming due execution and delivery by Parent and Purchaser constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms <omitted> (b) The Company Board, at a meeting duly called and held, and as of the Agreement Date not subsequently rescinded or modified in any way, duly adopted resolutions unanimously (i) approving <omitted> this Agreement <omitted> CONDITIONS TO THE OFFER <omitted> Purchaser shall not be required to <omitted> accept for payment or <omitted> to pay for any Shares validly tendered and not validly withdrawn prior to any then-scheduled Expiration Date in connection with the Offer if, immediately prior to the then-scheduled Expiration Date: <omitted> (c) <omitted> (ii) The representations and warranties of the Company (I) set forth in <omitted> Section 3.2(b) (Capitalization) shall not be true and correct in all respects (except for only de minimis inaccuracies) or Section 3.1 (Organization), Section 3.3(a) (Authorization), Section 3.3(b) (Authorization), Section 3.3(c)(i) (Authorization), Section 3.20 (Broker’s or Finder’s Fees), Section 3.21 (Opinion of Financial Advisor), Section 3.22 (Inapplicability of Anti-takeover Statute) and Section 3.23 (No Vote Required) shall not be true and correct in all material respects, <omitted> (II) set forth in Section 3.6 (Absence of Material Changes) shall not be true and correct <omitted> without disregarding the “Company Material Adverse Effect” qualification set forth therein (Pages 65-66) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_50 | 8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. The obligations of Parent, MergerCo 1 and MergerCo 2 to effect the Mergers are further subject to the satisfaction (or written waiver, if permissible under applicable Law), by the Parent (on behalf of the Parent, MergerCo 1and MergerCo 2), as of the Closing, of each of the following conditions: (a) Representations and Warranties <omitted> (iii) all other representations and warranties of the Paired Entities set forth in this Agreement shall be true and correct in all respects (without regard to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date, as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or time, in which case such representations and warranties need only be so true and correct as of such specific date or time), except where the failure or failures of all such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect. (Page 77)
8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. <omitted> (iii) all other representations and warranties of the Paired Entities set forth in this Agreement shall be true and correct in all respects <omitted> except where the failure or failures of all such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect. (Page 77)
5.3 Capitalization. (a) The authorized capital stock of the Company consists solely of 3,500,000,000 shares of Company Common Stock, 350,000,000 shares ofCompany Preferred Stock of which 25,000 shares are designated as Series A Preferred Stock, 3,500,000,000 shares of excess stock, <omitted> 8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. The obligations of Parent, MergerCo 1 and MergerCo 2 to effect the Mergers are further subject to the satisfaction (or written waiver, if permissible under applicable Law), by the Parent (on behalf of the Parent, MergerCo 1and MergerCo 2), as of the Closing, of each of the following conditions: (a) Representations and Warranties. (i) the representations and warranties set forth in Sections 5.3(a) <omitted> shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or time, in which case such representations and warranties need only be so true and correct as of such specific date or time) (Page 77)
5.3 Capitalization. (a) The authorized capital stock of the Company consists solely of 3,500,000,000 shares of Company Common Stock, 350,000,000 shares ofCompany Preferred Stock of which 25,000 shares are designated as Series A Preferred Stock, 3,500,000,000 shares of excess stock, <omitted> 8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. <omitted> . (i) the representations and warranties set forth in Sections 5.3(a) <omitted> shall be true and correct in all material respects (Page 77)
5.3 Capitalization. <omitted>
(i) As of the date of this Agreement, there is no outstanding Indebtedness for borrowed money of the Paired Entities and the Paired EntitiesSubsidiaries in excess of $10,000,000 in principal amount, other than Indebtedness in the principal amounts identified by instrument in Section 5.3(i) of the PairedEntities Disclosure Schedule.
5.9 Absence of Certain Changes. Since December 31, 2020, through the date of this Agreement, (i) there has not been any event <omitted> that has had or would reasonably be expected to have a Company Material Adverse Effect, <omitted> 8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. The obligations of Parent, MergerCo 1 and MergerCo 2 to effect the Mergers are further subject to the satisfaction (or written waiver, if permissible under applicable Law), by the Parent (on behalf of the Parent, MergerCo 1and MergerCo 2), as of the Closing, of each of the following conditions: (a) Representations and Warranties. (i) the representations and warranties set forth in Sections <omitted> 5.3(c), 5.3(e) and 5.3(i), shall be true and correct in all material respects, in each case, as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to a specific date or time, in which case such representations and warranties need only be so true and correct as of such specific date or time), (ii) the representation and warranty set forth in Section 5.9(i) shall be true and correct in all respects as of the date hereof and as of the Closing Date, as though made on and as of the Closing Date (Page 77)
5.3 Capitalization. <omitted>
(i) As of the date of this Agreement, there is no outstanding Indebtedness for borrowed money of the Paired Entities and the Paired EntitiesSubsidiaries in excess of $10,000,000 in principal amount, other than Indebtedness in the principal amounts identified by instrument in Section 5.3(i) of the PairedEntities Disclosure Schedule.
5.9 Absence of Certain Changes. Since December 31, 2020, through the date of this Agreement, (i) there has not been any event <omitted> that has had or would reasonably be expected to have a Company Material Adverse Effect, <omitted>
8.2 Additional Conditions to Obligations of Parent, MergerCo 1 and MergerCo 2. <omitted> (i) the representations and warranties set forth in <omitted> 5.3(c), 5.3(e) and 5.3(i), shall be true and correct in all material respects <omitted> (ii) the representation and warranty set forth in Section 5.9(i) shall be true and correct in all respects (Page 77) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_13 | 7.2 Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions:
(a) (A) each representation or warranty of the Company set forth in this Agreement, other than Sections 3.3, 3.4(a), 3.4(b), and 3.19, shall be true and correct (without giving effect to any qualification as to “materiality” or “Material Adverse Effect” set forth therein) as of the Closing Date as though made on or as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specified period of time, which need only be true and correct as of such date or with respect to such period), except, in each case, where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect that is continuing, (Pages 39-40)
7.2 Conditions to Obligation of Parent and Merger Sub. <omitted>
(A) each representation or warranty of the Company set forth in this Agreement <omitted> shall be true and correct <omitted> , except, in each case, where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect that is continuing, (Pages 39-40)
3.3 Capitalization. <omitted>
7.2 Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions: <omitted>
(a) <omitted> (B) each representation or warranty of the Company set forth in Section 3.3 shall be true and correct in all material respects as of the date of such representation and warranty (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000), and (Page 40)
3.3 Capitalization. <omitted>
7.2 Conditions to Obligation of Parent and Merger Sub. <omitted> (B) each representation or warranty of the Company set forth in Section 3.3 shall be true and correct in all material respects <omitted> (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000) (Page 40)
3.3 Capitalization <omitted> (e) <omitted> Each outstanding share of capital stock of each Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable and was not issued in violation of any preemptive or similar rights, purchase option, call or right of first refusal or similar rights created by the organizational documents of such Company Subsidiary or any Contract to which such Company Subsidiary is a party and are not subject to any pre-emptive or similar rights, and each such share is owned by the Company or another Company Subsidiary free and clear of all Liens (other than Permitted Liens) or Contracts or other limitations or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or equity interest) other than restrictions imposed by applicable securities laws. <omitted>
3.4 Authority Relative to this Agreement. (a) <omitted> This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors’ rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. <omitted>
(b) The Company Board, at a meeting duly called and held on February 26, 2021, at which all of the directors of the Company were present <omitted> (iii) approved this Agreement and the Transactions (including the Merger) upon the terms and conditions set forth in this Agreement <omitted>
3.19 Brokers and Expenses. <omitted>
7.2 Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions: <omitted> (a) <omitted>
(B) each representation or warranty of the Company set forth in Section 3.3 shall be true and correct in all material respects as of the date of such representation and warranty (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000), and (C) any representation or warranty of the Company set forth in Sections 3.4(a), 3.4(b), and 3.19 shall be true and correct in all respects as of the Closing Date as though made on or as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specified period of time, which need only be true and correct as of such date or with respect to such period). (Page 40)
3.3 Capitalization <omitted> (e) <omitted> Each outstanding share of capital stock of each Company Subsidiary is duly authorized <omitted> , and each such share is owned by the Company <omitted>
3.4 Authority Relative to this Agreement. (a) <omitted> This Agreement <omitted> constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms <omitted> (b) The Company Board <omitted> (iii) approved this Agreement <omitted>
3.19 Brokers and Expenses. <omitted>
7.2 Conditions to Obligation of Parent and Merger Sub. <omitted> (B) each representation or warranty of the Company set forth in Section 3.3 shall be true and correct in all material respects <omitted> (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000), and (C) any representation or warranty of the Company set forth in Sections 3.4(a), 3.4(b), and 3.19 shall be true and correct in all respects (Page 40) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_132 | ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY
<omitted> the Company hereby represents and warrants to Parent, Holding and Merger Sub that, (x) in respect of the entirety of Article V (other than in respect of Section 5.1(a), Section 5.3, Section 5.20, Section 5.21 and Section 5.22), as of the Original Signing Date, and (y) in respect of Section 5.1(a), Section 5.3, Section 5.20, Section 5.21and Section 5.22, as of the date hereof (in the case of both (x) and (y), except for any such representation and warranty (or part thereof) that expressly speaks as of a particular date or period of time, in which case as of such particular date or period of time): <omitted>
8.2 Conditions to Obligations of Parent, Holding and Merger Sub. The obligations of Parent, Holding and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Effective Time, of the following conditions (which may be waived, in whole or in part, to the extent permitted by Law, by Parent): 81
(a) Representations and Warranties. Each of the representations and warranties set forth in: Section 5.1(a) (Organization, Good Standing and Qualification), Section 5.2(a) and Section 5.2(b)(iv) (Capital Structure) (except for de minimis inaccuracies; provided, however, that no inaccuracies in excess of an aggregate 6,000 Shares shall be deemed to be de minimis), Section 5.3 (Corporate Authority and Approval), Section 5.20 (Takeover Statutes; No Rights Plan), Section 5.21 (Brokers and Finders) and Section 5.22 (Opinion of Financial Advisor) shall be true and correct in all respects as of the Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly, including by virtue of the lead in to Article V, speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time). (Pages 87-88) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_144 | SECTION 7.02. Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are further subject to the following conditions:(a) Representations and Warranties. <omitted> (ii) each of the other representations and warranties (excluding those representations and warranties specified in the preceding clause (i) of this Section 7.02(a)) of the Company in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on the Closing Date, except to the extent any such other representations and warranties expressly relate to an earlier date (in which case such other representations and warranties shall be true and correct on and as of such earlier date), in each case determined without regard to qualifications as to materiality or Company Material Adverse Effect, unless, for purposes of this clause (ii), the failure of any such other representations and warranties to be so true and correct has not resulted in, and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect. (Page 72)
SECTION 7.02. Conditions to Obligations of Parent and Sub. <omitted> (ii) each of the other representations and warranties <omitted> of the Company in this Agreement shall be true and correct <omitted> unless <omitted> the failure of any such other representations and warranties to be so true and correct has not resulted in, and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect. (Page 72)
SECTION 7.02. Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are further subject to the following conditions:(a) Representations and Warranties. <omitted> (i) The representations and warranties of the Company in Section 3.01 (Organization, Standing and Power), Section 3.02 (Company Subsidiaries; Equity Interests), Section 3.03(a), (b) <omitted> (Capital Structure), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.13 (Brokers and Other Advisors) and in Section 3.20 (Vote Required) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date, except to the extent that such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all but de minimis respects on and as of such earlier date) (Page 72)
SECTION 7.02. Conditions to Obligations of Parent and Sub. <omitted> The representations and warranties of the Company in <omitted> Section 3.03(a), (b) <omitted> (Capital Structure) <omitted> shall be true and correct in all but de minimis respects (Page 72)
SECTION 3.04. Authority; Execution and Delivery; Enforceability. <omitted> (b) The Board of Directors of the Company (the “Company Board”), at a meeting duly called and held at which all directors of the Company were present, duly and unanimously adopted resolutions (i) approving and declaring advisable this Agreement and the other Transaction Agreements, the Merger and the other Transactions and approving the execution, delivery and performance of this Agreement and the other Transaction Agreements <omitted> and (v) electing that the Merger not be subject to any “moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-takeover laws and regulations (collectively, “Takeover Laws”) of any jurisdiction that may purport to be applicable to this Agreement, which resolutions have not been rescinded, modified or withdrawn in any way.
SECTION 7.02. Conditions to Obligations of Parent and Sub. The obligations of Parent and Sub to effect the Merger are further subject to the following conditions:(a) Representations and Warranties. <omitted> (i) The representations and warranties of the Company in Section 3.01 (Organization, Standing and Power), Section 3.02 (Company Subsidiaries; Equity Interests), Section 3.03 <omitted> (b), (c) (first sentence only) and (f) (Capital Structure), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.13 (Brokers and Other Advisors) and in Section 3.20 (Vote Required) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date, except to the extent that such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all but de minimis respects on and as of such earlier date), (Page 72)
SECTION 3.04. Authority; Execution and Delivery; Enforceability. <omitted> (b) The Board of Directors of the Company (the “Company Board”), at a meeting duly called and held at which all directors of the Company were present, duly and unanimously adopted resolutions (i) approving and declaring advisable this Agreement and the other Transaction Agreements, the Merger and the other Transactions and approving the execution, delivery and performance of this Agreement and the other Transaction Agreements <omitted> and (v) electing that the Merger not be subject to any “moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-takeover laws and regulations (collectively, “Takeover Laws”) of any jurisdiction that may purport to be applicable to this Agreement, which resolutions have not been rescinded, modified or withdrawn in any way.
SECTION 7.02. Conditions to Obligations of Parent and Sub. <omitted> (i) The representations and warranties of the Company in Section 3.01 (Organization, Standing and Power), Section 3.02 (Company Subsidiaries; Equity Interests), Section 3.03 <omitted> (b), (c) (first sentence only) and (f) (Capital Structure), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.13 (Brokers and Other Advisors) and in Section 3.20 (Vote Required) shall be true and correct in all but de minimis respects (Page 72) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_135 | Section 3.3 Authority. <omitted> This Agreement has been duly executed and delivered by the Company and(assuming the due authorization, execution and delivery by the counterparties hereto) constitutes the valid and binding obligation of the Company,enforceable against the Company in accordance with its terms except to the extent that enforceability (i) may be limited by applicable bankruptcy,insolvency, fraudulent transfer, moratorium, reorganization or similar Laws affecting or relating to creditors’ rights generally (whether now or hereafter ineffect) and (ii) is subject to general principles of equity (the “Enforceability Limitations”). (b)The Company’s Board of Directors (the “Company Board”), at a meeting duly called and held, duly and unanimously adoptedresolutions (i) approving and declaring advisable this Agreement, Merger I, Merger II and the other Transactions, (ii) determining that this Agreement andTransactions are advisable and in the best interests of the Company and its stockholders, (iii) directing that this Agreement be submitted to a vote of thestockholders of the Company for adoption at the Company Stockholder Meeting, and (iv) resolving to make the Company Recommendation. <omitted>
Section 3.4 No Conflict; Consents and Approvals. (a) The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the Transactions, do not and will not (i) conflict with or violate the Company Charter, the Company Bylaws or the comparable charter or organizationaldocuments of any Subsidiary of the Company, (ii) assuming that all consents, approvals and authorizations contemplated by clauses (i) through (vii) of Section 3.4(b) have been obtained and all filings and notifications described in such clauses have been made and any waiting periods related thereto haveterminated or expired, conflict with or violate any U.S. or non-U.S. federal, state or local law, statute, code, directive, ordinance, rule, regulation, order,Judgment, writ, stipulation, award, injunction, decree or other enforceability requirements imposed by a Governmental Entity (collectively, “Law”), in each case that is applicable to any Acquired Company or by which any of its assets or properties is subject or bound, (iii) result in any breach or violation of, orconstitute a default (or an event which with notice or lapse of time or both would become a default), or result in a right of payment or loss of a benefit under,or give rise to any right of termination, cancellation or acceleration of, any Company Material Contract, (iv) result in any breach or violation of any CompanyPlan (including any award agreement thereunder) or (v) result in the creation of any Lien upon any of the material properties or assets of any of theAcquired Companies, other than, in the case of clauses (ii), (iii), (iv) and (v) above, any such items that, individually or in the aggregate, have not had, andwould not reasonably be expected to have, a Company Material Adverse Effect. <omitted>
Section 6.2 Conditions to Obligations of Parent, Merger Sub II and Merger Sub I. The respective obligations of Parent, Merger Sub II and Merger Sub I to effect Merger I are further subject to the satisfaction at the Effective Time of each of the following conditions, any and all of which may be waived, in whole or in part, by Parent: (a) Representations and Warranties. The representations and warranties of the Company set forth in (i) Section 3.1 (Organization, Standing and Power; Subsidiaries), Section 3.3 (Authority), Section 3.4 (No Conflict; Consents and Approvals) and Section 3.21 (Brokers) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except such representations or warranties that were made as of a specific date need to be true and correct in all respects as of such date), (ii) Section 3.2 (Capital Stock) shall be true and correct in all respects, except for any de minimis inaccuracies, as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except that such representations or warranties that were made as of a specific date need be true and correct in all respects, except for any de minimis inaccuracies, as of such date) and (iii) any other section of this Agreement (without regard to any materiality or Company Material Adverse Effect qualifiers contained therein) shall be true and correct in all material respects, in either case, as of the date of this Agreement and the Closing Date as though made on or as of such date (except such representations or warranties that were made as of a specific date need to be true and correct in all respects as of such date); provided that the condition in this clause (iii) of this Section 6.2(a) shall be deemed to have been satisfied even if any representations and warranties of Company are not true and correct unless the cumulative effect of the failure of such representations and warranties of the Company, individually or in the aggregate, has resulted in or is reasonably likely to result in a Company Material Adverse Effect. Parent shall have received a certificate of an authorized executive officer of the Company, dated as of the Closing Date, to the foregoing effect. (Page 39) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_24 | 7.2 Additional Conditions to Obligations of Labrador and Merger Sub. The obligations of Labrador and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Labrador, in whole or in part, to the extent permitted by applicable Law: (a) Representations and Warranties of Golden . <omitted> (iii)all other representations and warranties of Golden set forth in Article IV (a)which are qualified by a “Golden Material Adverse Effect” shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time) and (b)which are not qualified by a “Golden Material Adverse Effect” shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time), except, in the case of this clause (iii)(b), where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Golden Material Adverse Effect. (Page 44)
7.2 Additional Conditions to Obligations of Labrador and Merger Sub. <omitted> (iii)all other representations and warranties of Golden set forth in Article IV <omitted> shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date <omitted> except, in the case of this clause (iii)(b), where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Golden Material Adverse Effect. (Page 44)
7.2 Additional Conditions to Obligations of Labrador and Merger Sub. The obligations of Labrador and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Labrador, in whole or in part, to the extent permitted by applicable Law: (a) Representations and Warranties of Golden . (i)The representations and warranties of Golden set forth in the first sentence of <omitted> Section 4.2(a)(Capital Structure) <omitted> shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except, with respect to Section 4.2(a) <omitted> for any De Minimis Inaccuracies) (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time) (Page 44)
7.2 Additional Conditions to Obligations of Labrador and Merger Sub. <omitted> The representations and warranties of Golden set forth in <omitted> Section 4.2(a)(Capital Structure), <omitted> shall be true and correct <omitted> (except, with respect to Section 4.2(a) <omitted> any De Minimis Inaccuracies) (Page 44)
4.1 Organization, Standing and Power. <omitted> Each of Golden and its Subsidiaries is a corporation, partnership or limited liability company duly organized, as the case may be, validly existing and in good standing under the Laws of its jurisdiction of incorporation or organization, <omitted> 4.3 Authority; No Violations; Consents and Approvals. <omitted> The execution and delivery of this Agreement by Golden and the consummation by Golden of the Transactions have been duly authorized by all necessary corporate action on the part of Golden, subject, only with respect to consummation of the Merger, to the Golden Stockholder Approval. This Agreement has been duly executed and delivered by Golden and, assuming the due and valid execution of this Agreement by Labrador and Merger Sub, constitutes a valid and binding obligation of Golden enforceable against Golden in accordance with its terms <omitted> 4.6 Absence of Certain Changes or Events. <omitted> (a)Since December 31, 2020, there has not been any Golden Material Adverse Effect <omitted> 7.2 Additional Conditions to Obligations of Labrador and Merger Sub. The obligations of Labrador and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Labrador, in whole or in part, to the extent permitted by applicable Law: (a) Representations and Warranties of Golden . (i)The representations and warranties of Golden set forth in the first sentence of Section 4.1 (Organization, Standing and Power), <omitted> Section 4.3(a) (Authority), and Section 4.6(a) (Absence of Certain Changes or Events) shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date <omitted> (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time), (ii)all other representations and warranties of Golden set forth in Section 4.2(b)(Capital Structure) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct in all material respects only as of such date or period of time), (Page 44)
4.1 Organization, Standing and Power. <omitted> Each of Golden and its Subsidiaries is a corporation, partnership or limited liability company duly organized, as the case may be, validly existing and in good standing under the Laws of its jurisdiction of incorporation or organization, <omitted>
4.3 Authority; No Violations; Consents and Approvals. <omitted> The execution and delivery of this Agreement by Golden and the consummation by Golden of the Transactions have been duly authorized by all necessary corporate action on the part of Golden, subject, only with respect to consummation of the Merger, to the Golden Stockholder Approval. This Agreement has been duly executed and delivered by Golden and, assuming the due and valid execution of this Agreement by Labrador and Merger Sub, constitutes a valid and binding obligation of Golden enforceable against Golden in accordance with its terms <omitted> 4.6 Absence of Certain Changes or Events. <omitted> (a)Since December 31, 2020, there has not been any Golden Material Adverse Effect <omitted>
7.2 Additional Conditions to Obligations of Labrador and Merger Sub. <omitted> (i)The representations and warranties of Golden set forth in the first sentence of Section 4.1 (Organization, Standing and Power), <omitted> Section 4.3(a) (Authority), and Section 4.6(a) (Absence of Certain Changes or Events) <omitted> shall be true and correct <omitted> (ii)all other representations and warranties of Golden set forth in Section 4.2(b)(Capital Structure) <omitted> shall be true and correct in all material respects (Page 44) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_146 | SECTION 3.02 Company Subsidiaries. All the outstanding shares of capital stock or voting securities of, or other equity interests in, each Company Subsidiary have been validly issued and are fully paid and nonassessable, and all of the outstanding shares of capital stock or voting securities of, or other equity interests in, each Company Subsidiary that are owned by the Company or by another Company Subsidiary are so owned free and clear <omitted>
SECTION 3.04 Authority; Execution and Delivery; Enforceability. <omitted> he Company Board has unanimously adopted resolutions, at a meeting duly called at which a quorum of directors of the Company was present <omitted> (b) approving the Company’s execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby <omitted> The Company has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Parent and Merger Sub, this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms <omitted>
SECTION 3.15 Takeover Statutes. <omitted> the Company has no rights plan, “poison pill” or similar agreement that is applicable to this Agreement or the transactions contemplated hereby; <omitted> SECTION 7.03 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger is further subject to the satisfaction or waiver (by Parent and Merger Sub) at or prior to the Closing of each of the following conditions: ( a ) Representations and Warranties . (i) The representations and warranties of the Company contained herein (other than those specified in clause (ii) below) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) as of the date of this Agreement and as of the Closing Date as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of any such representation or warranty to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect and (ii) the representations and warranties of the Company contained in Section 3.01 (Organization, Standing and Power), Section 3.03 (Capital Structure), Section 3.04 (Authority; Execution and Delivery; Enforceability), Section 3.07(b) (Absence of Certain Changes or Events), Section 3.15 (Takeover Statutes), Section 3.25 (Brokers’ Fees and Expenses ) and Section 3.26 (Opinion of Financial Advisors) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) except, in each case, for any de minimis failures of such representations and warranties to be so true and correct. (Page 64) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_143 | Section 4.2 Capital Structure. <omitted> (c) <omitted> All outstanding shares of capital stock or other equity interests of the Subsidiaries of each Group Company are owned by either Group Company, or a direct or indirect wholly -16 owned Subsidiary of such Group Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and are duly authorized, validly issued, fully paid and nonassessable. <omitted>
Section 4.3 Authority; No Violations; Consents and Approvals. (a) Each Group Company has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement by each Group Company and the consummation by each Group Company of the Transactions have been duly authorized by all necessary corporate action on the part of such Group Company, subject, only with respect to the consummation of the Merger, the Company Stockholder Approval and the filing of the Certificate of First Merger and Certificate of Second Merger with the Office of the Secretary of State of the State of Delaware. This Agreement has been duly executed and delivered by each Group Company and, assuming the due and valid execution of this Agreement by Parent and the Merger Subs, constitutes a valid and binding obligation of each Group Company enforceable against such Group Company in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a Proceeding in equity or at Law (collectively, “Creditors’ Rights”). The Company Board, at a meeting duly called and held, has by unanimous vote (A) determined that this Agreement and the Transactions, including the Merger, are fair and reasonable to, and advisable and in the best interests of, the Company and the holders of Company Common Stock, (B) approved and declared advisable this Agreement and the consummation of the Transactions <omitted>
Section 7.2 Additional Conditions to Obligations of Parent and the Merger Subs. The obligations of Parent, Merger Sub Inc. and Merger Sub LLC 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 Group Companies set forth in the first sentence of Section 4.1 (Organization, Standing and Power), Section 4.2(a) (Capital Structure), Section 4.2(b) (Capital Structure), the third and fifth sentences of Section 4.2(c) (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(c), for any de minimis inaccuracies and Section 4.2(b) due to the conversion of the Holdings Class B Units pursuant to Section 3.2) (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(c) (Capital Structure) shall have been true and correct in all material respects as of the date of 76
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), and (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. (Pages 80-81) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_75 | Section 3.1 Organization. <omitted>
Section 3.3 Authorization; No Conflict.
(a) <omitted> The Company has duly executed and delivered this Agreement and, assuming due authorization, execution and delivery by Parent and Merger Subsidiary, this Agreement constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). <omitted> (b) The Company Board, by resolutions adopted at a meeting duly called and held, has unanimously (i) determined that this Agreement and the Transactions, including the Merger, are fair to and in the best interests of the Company and its stockholders, (ii) approved and declared advisable this Agreement (including the “agreement of merger,” as such term is used in Section 251 of the DGCL, contained herein) and the Transactions, <omitted>
Section 3.8 Broker’s or Finder’s Fees. <omitted>
Section 3.14 Intellectual Property; IT Assets; Data Privacy. <omitted> (g) Except as noted in Section 3.14(g) of the Company Disclosure Letter, the SLX Agreements, true and complete copies of which have been made available to Parent, remain in full force and effect and have not been amended in a manner that materially reduces the rights of any Company sublicensee. To the Knowledge of the Company, there are no facts or circumstances that would form the basis for any counterparty under the SLX Agreements to terminate any SLX Agreement with respect to Belumosudil, including, for the avoidance of doubt, with respect to a CompanySubsidiary’s assumption of the responsibilities of the Buyer (as defined in the Nano Terra Merger Agreement) in accordance with the applicable SLX Agreements with respect to Belumosudil. The execution, delivery and performance by the Company of this Agreement and the consummation of theTransactions do not and will not, under the terms of the SLX Agreements, result in (i) the loss or impairment of the Company’s right to sublicense or use any of the Company Intellectual Property Rights licensed to the Company pursuant to the SLX Agreements with respect to Belumosudil or (ii) the paymentof any additional consideration for Parent’s right to sublicense or use any such Intellectual Property. Either (A) the Buyer (as defined in the Nano TerraMerger Agreement) is, as a result of a Company Subsidiary’s compliance in all respects with its diligence obligations under
Section 7.1 of the SLXSublicense Agreement, in compliance in all respects with the diligence requirements set forth in Section 8.1 of the Nano Terra Merger Agreement withrespect to Belumosudil, including the obligation to use Commercially Reasonable Efforts (as defined in the Nano Terra Merger Agreement) to developBelumosudil; or (B) in completing the ROCKSTAR Study and/or the Clinical Trials, the Diligence Term (as such term is defined in the Nano Terra MergerAgreement) has expired with respect to Belumosudil. The Company has timely paid, or shall timely pay (to the extent due on or following the AgreementDate), to the appropriate party all material consideration due on or prior to the date that is ninety (90) days following the Closing Date under any SLXAgreement, including any and all Program Payments (as defined the Nano Terra Merger Agreement) and payments related to royalties and SublicenseRevenue (as such term is defined in the Nano Terra Merger Agreement). As of the Agreement Date, neither the Company nor any Company Subsidiaryhas received written notice with respect to Belumosudil (1) asserting a right of reversion or termination under the Nano Terra Merger Agreement or (2)asserting noncompliance with, or failure to perform, a diligence obligation or diligence requirement under any SLX Agreement. During the Interim Period,neither the Company nor any Company Subsidiary has received written notice with respect to Belumosudil (1) asserting a right of reversion or terminationunder the Nano Terra Merger Agreement or (2) asserting noncompliance with, or failure to perform, a diligence obligation or diligence requirement, in anymaterial respect, under any SLX Agreement. <omitted>
Section 6.2 Additional Parent and Merger Subsidiary Conditions. The obligations of Parent and Merger Subsidiary to consummate the Merger shall be further subject to the satisfaction (or waiver by Parent) of each of the following conditions at or prior to the Closing: <omitted>
(b) Accuracy of Representations and Warranties.
(i) The representations and warranties of the Company set forth in Section 3.2(a) and Section 3.2(b) (first sentence only) (the “Capitalization Representations”) shall be true and correct as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except for any de minimis inaccuracies (it being understood that the accuracy of those representations and warranties that address matters only as of a specified date shall be measured as set forth in this clause (b)(i) only as of such date);
53
(ii) The representations and warranties of the Company set forth in Section 3.1, Section 3.3(a), Section 3.3(b), Section 3.8 and Section 3.14(g) (the “Fundamental Representations) shall be true and correct as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date); provided, however, that for purposes of determining the accuracy of the representation and warranty of the Company set forth in the second sentence of Section 3.14(g), for purposes of this Section 6.2(b) (ii), qualifications based on Knowledge of the Company contained in such representation and warranty shall be disregarded;
(iii) The representations and warranties of the Company set forth in this Agreement (other than the Capitalization Representations and the Fundamental Representations) shall be true and correct as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except (i) for any failure to be so true and correct which has not had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and (ii) for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date, except for any failure to be so true and correct as of such date which has not had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect); provided, however, that for purposes of determining the accuracy of the representations and warranties of the Company set forth in this Agreement for purposes of this Section 6.2(b)(iii), all qualifications in the representations and warranties based on a “Company Material Adverse Effect” and all materiality qualifications and other qualifications based on the word “material” or similar phrases (but not dollar thresholds) contained in such representations and warranties shall be disregarded. (Pages 57-58) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | 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) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_108 | Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. The obligation of the Parent Parties to effect the Mergers is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: <omitted> (iii) each of the remaining representations and warranties of the Company Parties set forth in this Agreement shall be true and correct, in each case as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality,” “in all material respects” or “Company Material Adverse Effect”) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 99)
Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. <omitted> (iii) each of the remaining representations and warranties of the Company Parties set forth in this Agreement shall be true and correct, <omitted> except, in the case of this clause (iii), where the <omitted> would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Page 99)
Section 3.2 Capital Stock.<omitted> Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. The obligation of the Parent Parties to effect the Mergers is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions: (a) Representations and Warranties. (i) Each of the representations and warranties of the Company Parties set forth in the first sentence of <omitted> Section 3.2(a) <omitted> shall be true and correct as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except, with respect to Section 3.2(a) <omitted> for any de minimis inaccuracies) (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date); (Pages 98-99)
Section 3.2 Capital Stock.<omitted> Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers <omitted> (i) Each of the representations and warranties of the Company Parties set forth in <omitted> Section 3.2(a) <omitted> shall be true and correct (except, with respect to Section 3.2(a) <omitted> for any de minimis inaccuracies) (Pages 98-99)
Section 3.1 Organization, Standing and Power. <omitted> Section 3.2 Capital Stock.<omitted> <omitted>
(b) All outstanding shares of capital stock and other voting
securities or equity interests of each such Subsidiary (other than Opco
LLC) are
owned, directly or indirectly, by Opco LLC, free and clear of all pledges, claims, liens, charges, options, rights of
first refusal, encumbrances
and security interests of any kind or nature
whatsoever (including any limitation on voting, sale, transfer or other
disposition or exercise of any
other attribute of ownership) (collectively, “
Liens
”), other than
transfer restrictions of general applicability as may be provided under
the
Securities Act or other applicable securities Laws or as set forth
in the Company Organizational Documents.
<omitted>
Section 3.4 Authority. <omitted> This Agreement has been duly executed and delivered by the Company Parties and, assuming the due authorization, execution and delivery by each Parent Party, constitutes a valid and binding obligation of each Company Party, enforceable against such Company Party in accordance with its terms <omitted> (b) The Company Board, at a meeting duly called and held at which all directors of the Company were present, duly and unanimously adopted resolutions <omitted> (ii) approving and declaring advisable this Agreement and the Transactions <omitted> Section 3.9 Absence of Certain Changes or Events. Since June 30, 2020, <omitted> (b) there has not been any change, event or development or prospective change, event or development that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect; <omitted> Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. The obligation of the Parent Parties to effect the Mergers is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time of the following conditions:(a) Representations and Warranties. (i) Each of the representations and warranties of the Company Parties set forth in the first sentence of Section 3.1(a), <omitted> Section 3.2(c), Section 3.2(f), Section 3.4, and Section 3.9(b) shall be true and correct as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except, with respect to <omitted> Section 3.2(c), for any de minimis inaccuracies) (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date); (ii) each of the other representations and warranties of the Company Parties set forth in Section 3.2 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date); (Pages 98-99)
Section 3.1 Organization, Standing and Power. <omitted>
Section 3.2 Capital Stock.<omitted>
(b) All outstanding shares of capital stock and other voting
securities or equity interests of each such Subsidiary (other than Opco
LLC) are
owned, directly or indirectly, by Opco LLC,
<omitted>
Section 3.4 Authority. <omitted> This Agreement <omitted> constitutes a valid and binding obligation of each Company Party, enforceable against such Company Party in accordance with its terms <omitted> (b) The Company Board, at a meeting duly called and held at which all directors of the Company were present, duly and unanimously adopted resolutions <omitted> (ii) approving and declaring advisable this Agreement and the Transactions <omitted>
Section 3.9 Absence of Certain Changes or Events. <omitted>
Section 6.2 Conditions to the Obligations of the Parent Parties to Effect the Mergers. <omitted> (i) Each of the representations and warranties of the Company Parties set forth in the first sentence of Section 3.1(a), <omitted> Section 3.2(c), Section 3.2(f), Section 3.4, and Section 3.9(b) shall be true and correct <omitted> (except, with respect to <omitted> Section 3.2(c), for any de minimis inaccuracies) <omitted> (ii) each of the other representations and warranties of the Company Parties set forth in Section 3.2 shall be true and correct in all material respects (Pages 98-99) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
main | contract_117 | 7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law: (a) Representations and Warranties of the Company. <omitted> (iii) all other representations and warranties of the Company set forth in Article IV shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or -76-
period of time shall have been true and correct only as of such date or period of time), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality”, “in all material respects” or “Company Material Adverse Effect”) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Pages 80-81)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (iii) all other representations and warranties of the Company set forth in Article IV <omitted> except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct <omitted> would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (Pages 80-81)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law: (i) The representations and warranties of the Company set forth in <omitted> Section 4.2(a) (Capital Structure) <omitted> shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except, with respect to Section 4.2(a) <omitted> for any De Minimis Inaccuracies) (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time) (Page 80)
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in <omitted> Section 4.2(a) (Capital Structure) <omitted> shall have been true and correct <omitted> (except, with respect to Section 4.2(a) <omitted> for any De Minimis Inaccuracies) (Page 80)
4.1 Organization, Standing and Power. <omitted>
4.2 Capital Structure. <omitted>
All outstanding shares of capital stock or other Equity
Securities of the
Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly-owned Subsidiary of
the Company, are free and clear
of all Encumbrances and have been duly
authorized, validly issued, fully paid and nonassessable. <omitted>
4.3 Authority; No Violations; Consents and Approvals. (a) <omitted>
This Agreement has been duly executed and delivered
by the Company and, assuming the due and valid execution of this
Agreement by Parent and Merger Sub, constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity regardless of whether such enforceability is considered in a Proceeding in equity or at law (collectively, “Creditors’ Rights”).
The Company Board, at a meeting duly called and held, has by
unanimous
<omitted>
vote (i) determined that this Agreement and the Transactions, including
the Merger, are fair to, and in the best interests of, the Company and
holders of Company Common Stock, (ii) approved and declared advisable this Agreement and the
Transactions, including the Merger <omitted>
4.6 Absence of Certain Changes or Events. <omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Parent, in whole or in part, to the extent permitted by applicable Law: <omitted> (a) Representations and Warranties of the Company. (i) The representations and warranties of the Company set forth in the first sentence of Section 4.1 (Organization, Standing and Power), <omitted> the third and fifth sentences of Section 4.2(b) (Capital Structure), Section 4.3(a) (Authority), and Section 4.6(a) (Absence of Certain Changes or Events) shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except, with respect to <omitted> the third and fifth sentences of Section 4.2(b), for any De Minimis Inaccuracies) (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time), (ii) all other representations and warranties of the Company set forth in Section 4.2(b) (Capital Structure) (except for the second sentence of Section 4.2(b)) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct in all material respects only as of such date or period of time), (Page 80)
4.1 Organization, Standing and Power. <omitted>
4.2 Capital Structure. <omitted>
All outstanding shares of capital stock or other Equity
Securities of the
Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly-owned Subsidiary of
the Company, are free and clear
of all Encumbrances and have been duly
authorized, validly issued, fully paid and nonassessable. <omitted>
4.3 Authority; No Violations; Consents and Approvals. (a) <omitted>
This Agreement <omitted> constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, <omitted>
The Company Board, at a meeting duly called and held, has by
unanimous <omitted> vote <omitted> (ii) approved and declared advisable this Agreement and the Transactions, including the Merger <omitted>
4.6 Absence of Certain Changes or Events. <omitted>
7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted> (i) The representations and warranties of the Company set forth in the first sentence of Section 4.1 (Organization, Standing and Power), <omitted> the third and fifth sentences of Section 4.2(b) (Capital Structure), Section 4.3(a) (Authority), and Section 4.6(a) (Absence of Certain Changes or Events) shall have been true and correct <omitted> (except, with respect to <omitted> the third and fifth sentences of Section 4.2(b), for any De Minimis Inaccuracies) <omitted> (ii) all other representations and warranties of the Company set forth in Section 4.2(b) (Capital Structure) (except for the second sentence of Section 4.2(b)) shall have been true and correct in all material respects (Page 80) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_4 | Section 7.02 Conditions to the Obligations of Parent and Merger Sub.
<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> on the Closing Date as if made on the Closing Date (Page 84) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_6 | 5.2 Conditions to Obligations of GBCI. <omitted> 5.2.1 Representations and Warranties. The (a) representations and warranties of AB and the Bank contained in Sections 3.1.3(a), 3.1.3(b), 3.1.3(c), 3.1.12 and 3.1.18 will be true and correct in all respects, except, in the case of Sections 3.1.3(a), 3.1.3(b), and 3.1.3(c) with respect to de minimis inaccuracies, (b) representations and warranties of AB and the Bank contained in the first sentence of Section 3.1.1(a), the first sentence of Section 3.1.1(b), and Sections 3.1.1(d), 3.1.2, and 3.1.19 will be true and correct in all material respects, and (c) representations and warranties of AB and the Bank contained in this Agreement not otherwise set forth in clause (a) or clause (b) of this Section 5.2.1 will be true and correct in all respects except where the failure to be so true and correct would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect with respect to AB, in the case of clause (b) and clause (c) of this Section 5.2.1, disregarding all qualifications or limitations as to “materiality,” “Material Adverse Effect” and words of similar import set forth therein, and, in each case, with the same force and effect as though such representations and warranties had been made on and as of Closing (except to the extent that such representations and warranties are by their express provisions made as of a specified date, in which case such representations and warranties will be true and correct in all material respects or true and correct, as the case may be, as of such date). AB and the Bank will have delivered to GBCI a certificate to that effect, executed by a duly authorized officer of AB and the Bank and dated as of the Effective Date. (Page 45) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_6 | 5.2 Conditions to Obligations of GBCI. <omitted> 5.2.1 Representations and Warranties. <omitted> (c) representations and warranties of AB and the Bank contained in this Agreement not otherwise set forth in clause (a) or clause (b) of this Section 5.2.1 will be true and correct in all respects <omitted> as though such representations and warranties had been made on and as of Closing (Page 45) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | 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) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_8 | 7.2 Additional Conditions to Obligations of Parent and Merger Sub. <omitted>
(iii) all other representations and warranties of the Company set forth in Article IV
of this Agreement shall be true and
correct as of the Closing Date, as though made on and as of the Closing Date (Page 32) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_9 | Conditions to the Offer <omitted>
Notwithstanding any other term of the Offer or this Agreement to the contrary, 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-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: (i) if this Agreement has been terminated in accordance with Article VII; or (ii) at any scheduled Expiration Date (as it may have been extended pursuant to Section 1.1(d) of this Agreement), if (x) the condition in clause (a) below has not been satisfied by one minute after 11:59 p.m., New York City time, on the Expiration Date or (y) any of the additional conditions set forth below shall not be satisfied or waived in writing by Parent: <omitted>
(c) (i) other than the representations and warranties listed in Sections (c)(ii) and (c)(iii) in this Annex I, each of the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct (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”) as of the Offer Acceptance Time as if made at and as of the Offer Acceptance Time (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 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 41) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_9 | Conditions to the Offer <omitted>
(c) (i) other than the representations and warranties listed in Sections (c)(ii) and (c)(iii) in this Annex I, each of the representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct <omitted> as of the Offer Acceptance Time as if made at and as of the Offer Acceptance Time (Page 41) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_13 | 7.2 Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger shall be subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions:
(a) (A) each representation or warranty of the Company set forth in this Agreement, other than Sections 3.3, 3.4(a), 3.4(b), and 3.19, shall be true and correct (without giving effect to any qualification as to “materiality” or “Material Adverse Effect” set forth therein) as of the Closing Date as though made on or as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specified period of time, which need only be true and correct as of such date or with respect to such period), except, in each case, where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect that is continuing, (Pages 39-40) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_13 | 7.2 Conditions to Obligation of Parent and Merger Sub. <omitted>
each representation or warranty of the Company set forth in this Agreement <omitted> shall be true and correct <omitted> as of the Closing Date as though made on or as of such date (Pages 39-40) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_14 | 7.2 Conditions to Obligations of SVB Financial. The obligation of SVB Financial to effect the Merger is also subject to the satisfaction, or waiver by SVB Financial, at or prior to the Effective Time, of the following conditions: (a) Representations and Warranties. The representations and warranties of Boston Private set forth in Section 3.2(a) and Section 3.8(a) (in each case after giving effect to the lead in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, and the representations and warranties of Boston Private set forth in Sections 3.1(a), 3.1(b) (with respect to Boston Private Bank only), 3.2(c) (with respect to Boston Private Bank only) and 3.3(a) (in each case, after giving effect to the lead in to Article III) shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date. All other representations and warranties of Boston Private 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 (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing 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 Boston Private or the Surviving Corporation. SVB Financial shall have received a certificate signed on behalf of Boston Private by the Chief Executive Officer and the Chief Financial Officer of Boston Private to the foregoing effect. (Page 77) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_14 | 7.2 Conditions to Obligations of SVB Financial. <omitted> All other representations and warranties of Boston Private set forth in this Agreement <omitted> shall be true and correct in all respects as of the date of this Agreement and <omitted> as of the Closing Date as though made on and as of the Closing Date (Page 77) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_18 | 7 . 2 Conditions to Obligations of BancorpSouth. The obligation of BancorpSouth to effect the Merger is also subject to the satisfaction, or waiver by BancorpSouth, at or prior to the Effective Time, of the following conditions: -69-
(a) Representations and Warranties.
<omitted>
All other representations and warranties of Cadence set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on Cadence or the Surviving Entity. BancorpSouth shall have received a certificate dated as of the Closing Date and signed on behalf of Cadence by the Chief Executive Officer or the Chief Financial Officer of Cadence to the foregoing effect. (Page 79) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_18 | 7 . 2 Conditions to Obligations of BancorpSouth. <omitted>
(a) Representations and Warranties.
<omitted>
All other representations and warranties of Cadence set forth in this Agreement <omitted> shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (Page 79) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_21 | 7.2 Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to effect the Merger is also subject tothe satisfaction, or waiver by Buyer and Merger Sub, at or prior to the Effective Time, of the following conditions:(a) Representations and Warranties. <omitted> All other representations and warranties of Company set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); (Page 62) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_21 | 7.2 Conditions to Obligations of Buyer and Merger Sub. <omitted> All other representations and warranties of Company 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 <omitted> (Page 62) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_22 | 8.2. Conditions to Parent’s and Merger Sub’s Obligation to Effect the Closing. The obligations of Parent and Merger Sub to effect the Closing are also subject to the satisfaction or waiver by Parent at or prior to the Closing Date of the following conditions: (a) Representations and Warranties. Each of the representations and warranties set forth in: <omitted> (iii) Article V (other than those set forth in the foregoing clauses (i) and (ii) of this Section 8.2(a)), without giving effect to any “materiality” or “Material Adverse Effect” qualifiers or qualifiers of similar import set forth therein, shall be true and correct as of the date of this Agreement and as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct as of such particular date or period of time), except, in the case of this clause (iii), for any failure of any such representation and warranty to be so true and correct that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (Page 57) | Accurate at another materiality standard (e.g., hybrid standard) | 0 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_22 | 8.2. Conditions to Parent’s and Merger Sub’s Obligation to Effect the Closing. <omitted> Each of the representations and warranties set forth in: <omitted> (iii) Article V (other than those set forth in the foregoing clauses (i) and (ii) of this Section 8.2(a)) <omitted> shall be true and correct as of the date of this Agreement and as of the Closing as though made as of the Closing (Page 57) | Accurate at another materiality standard (e.g., hybrid standard) | 0 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_23 | 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, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions:
<omitted>
(b)
<omitted>
(iv) the other representations and warranties of the Company contained in Article IV (disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect) shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had, individually or in the aggregate, a Company Material Adverse Effect; (Page 102) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_23 | Section 8.02 Conditions to the Obligations of Parent and Merger Sub.
<omitted>
(iv) the other representations and warranties of the Company contained in Article IV <omitted> shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (Page 102) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_24 | 7.2 Additional Conditions to Obligations of Labrador and Merger Sub. The obligations of Labrador and Merger Sub to consummate the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived exclusively by Labrador, in whole or in part, to the extent permitted by applicable Law: <omitted>(a) Representations and Warranties of Golden . <omitted> (iii)all other representations and warranties of Golden set forth in Article IV (a)which are qualified by a “Golden Material Adverse Effect” shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time) and (b)which are not qualified by a “Golden Material Adverse Effect” shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (except that representations and warranties that speak as of a specified date or period of time shall have been true and correct only as of such date or period of time), except, in the case of this clause (iii)(b), where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Golden Material Adverse Effect. (Page 44) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_24 | 7.2 Additional Conditions to Obligations of Labrador and Merger Sub. <omitted> (iii)all other representations and warranties of Golden set forth in Article IV <omitted> shall have been true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date, as though made on and as of the Closing Date (Page 44) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | 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) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_17 | 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 as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (Page 66) | Accurate in all material respects | 1 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | 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 the
Expiration 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 (Page 107) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_28 | 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 as of the consummation of the Offer as though made as of the consummation of the Offer (Page 107) | Accurate in all respects | 2 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_35 | Section 6.2 Conditions to Obligations of Parent and Merger Subs. The obligations of Parent and Merger Subs to consummate the Closing are subject to the satisfaction (or waiver by Parent) prior to the Closing of the following conditions: (a) Representations and Warranties. (i) Each representation and warranty in Article III (except for the representations and warranties in Section 3.1(a), Section 3.2(a), Section 3.2(b) (other than the third sentence thereof), the first sentence of Section 3.2(d), Section 3.2(e), Section 3.3, Section 3.6(b) and Section 3.20) shall be accurate in all respects (read, for purposes of this Section 6.2(a) only, without any qualification as to “material,” “in all material respects,” “Company Material Adverse Effect” or materiality) as of the date hereof and as of the Closing as if made anew as of the Closing (except to the extent any such representation or warranty expressly speaks as of any other specific date, in which case such representation or warranty shall have been accurate in all respects as of such date), except for any failure of such representations and warranties to be accurate as would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, (Page 76) | Accurate at another materiality standard (e.g., hybrid standard) | 0 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
abridged | contract_35 | Section 6.2 Conditions to Obligations of Parent and Merger Subs. <omitted> (i) Each representation and warranty in Article III <omitted> shall be accurate in all respects <omitted> as of the date hereof and as of the Closing as if made anew as of the Closing (Page 76) | Accurate at another materiality standard (e.g., hybrid standard) | 0 | Accuracy of Fundamental Target R&Ws: Bringdown Standard | <NONE> | Accuracy of Target R&W Closing Condition | 9 | Conditions to Closing |
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