Buyer and Merger. Sub acknowledge that the Top-Up Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act and will be issued in reliance upon an applicable exemption from registration under the Securities Act. Each of Buyer and Merger Sub hereby represents and warrants to the Company that Merger Sub is, and will be, upon the purchase of the Top-Up Shares, an “accredited investor,” as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).
Buyer and Merger. Sub acknowledge and agree that neither the Company nor any other Person has made or is making any express or implied representation or warranty other than those contained in Article II.
Buyer and Merger. Sub shall, and shall cause their respective Affiliates to, use all commercially reasonable efforts to (1) maintain the effectiveness of the Debt Financing Commitment Letter, (2) cause to be made available to Merger Sub the Debt Financing or other debt financing in an aggregate principal amount equal to the principal amount of the Debt Financing and on material economic terms no less favorable in the aggregate to Merger Sub than the material economic terms reflected in the term sheets attached to the Debt Financing Commitment Letter and (3) satisfy all funding conditions to the Debt Financing or such other debt financing set forth in the definitive documentation with respect to the Debt Financing or such other debt financing.
Buyer and Merger. Sub have all requisite power and authority to execute, deliver and perform the Agreement and Plan of Reorganization and all documents contemplated therein to be executed and delivered by Holdings and/or Midwest (collectively, the "Documents"). The execution, delivery and performance of the Agreement and Plan of Reorganization and the other Documents have been duly authorized by all necessary action by Buyer and Merger Sub. The Agreement and Plan of Reorganization and the other Documents have each been duly executed and delivered by Buyer and Merger Sub, as applicable, and each is the valid and legally binding obligation of Buyer and Merger Sub, as applicable, enforceable against Buyer and Merger Sub, as applicable, in accordance with their respective terms subject to insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
Buyer and Merger. Sub have heretofore delivered to the Company true and complete copies of the Certificate of Incorporation and Bylaws, as currently in full force and effect, of Buyer and Merger Sub. Each of Buyer and its subsidiaries is duly qualified or licensed and in good standing to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except in such jurisdictions where the failure to be so duly qualified or licensed and in good standing would not have a Material Adverse Effect on Buyer.
Buyer and Merger. Sub acknowledge and agree that neither the obligations of Buyer or Merger Sub under this Agreement nor the consummation of the Merger or the other transactions contemplated by this Agreement are contingent on the availability or the receipt by Buyer or Merger Sub of any third party financing (including the Financing) or the proceeds thereof.
Buyer and Merger. Sub shall each use its commercially reasonable efforts to cause those conditions to the obligations of the Company to consummate the transactions contemplated hereby that are set forth in Sections 6.1 and 6.2 to be satisfied as promptly as reasonably possible following the date hereof, and in any event by the Voluntary Termination Date;
Buyer and Merger. Sub will use commercially reasonable efforts to maximize the Earnout Net Revenues consistent with Buyer's past practice. 2.10
Buyer and Merger. Sub (to the extent they are a ------------------ party thereto) shall have executed and delivered to the Shareholders' Representative Committee this Agreement and the Escrow Agreement and each other Purchase Document, if any, to which Buyer or Merger Sub is a party.
Buyer and Merger. Sub waive and shall not assert, and after Closing each agrees to cause the Company to waive and to not assert, any attorney-client privilege or confidentiality obligation with respect to any communication between the Current Counsel and any Designated Person occurring with respect to the Current Representation (the “Privileged Communication”) in connection with any Post-Closing Representation, including in connection with a dispute with Buyer, Merger Sub or their Affiliates (after Closing, including the Company), it being the intention of the Parties hereto that all such rights to such attorney-client privilege and confidential information and to control such attorney-client privilege and such confidential information shall be retained by such Designated Person (and not the Buyer or the Company) and shall not pass to or be claimed by the Buyer or the Company. Accordingly, after Closing, Buyer and its Affiliates (including the Company) shall not have access to any such communications or to the files of the Current Counsel relating to the Current Representation from and after Closing. Without limiting the generality of the foregoing, from and after Closing, (a) the Designated Persons shall be the sole holders of the attorney-client privilege with respect to the Current Representation, and the Company shall not be a holder thereof, (b) to the extent that files of the Current Counsel in respect of the Current Representation constitute property of the client, only the Designated Persons shall hold such property rights and (c) the Current Counsel shall, subject to Section 7.15(c), have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Companies by reason of any attorney-client relationship between the Current Counsel and the Company or otherwise.
