Common use of Conditions of Obligations of Parent and Merger Sub Clause in Contracts

Conditions of Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction of the following conditions (which may be waived in whole or in part by Parent): (a) the Company shall have performed all of the obligations required to be performed by it under this Agreement on or before the Closing Date; (b) the representations and warranties of the Company shall be true and correct as of the date hereof and, except to the extent such representations and warranties speak as of an earlier date, as of the Effective Time, as though made at and as of the Effective Time; (c) the Company shall have obtained all Consents required from Governmental Authorities and other third parties required for the consummation of the Merger and the transactions contemplated hereby; (d) the Company and the Parent shall have received written communications from the parties to the contracts listed on Annex II stating that such party is aware of the proposed transfer of ownership of the Company to the Parent and that such transfer will not cause such party to terminate the contract or refuse assignment of the contract, or containing such other language that is acceptable to the Parent in its sole reasonable discretion; (e) that the Company shall have received, prior to the Effective Time, from the holder of each Company Option and from the holder of each Restricted Stock Unit, an executed Amendment form included as part of Section 2.14 of the Company Disclosure Letter, (f) the Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by its Chief Executive Officer or the Chief Financial Officer confirming the matters set forth in clauses (a), (b), (c), (d) and (e) of this Section 6.4; (g) the Financial Advisor shall not have withdrawn or modified its written opinion referred to in Section 2.21; (h) that each of the Stockholders listed on Annex I have executed and delivered to Parent a Common Shareholders Agreement and the Preferred Stockholder has executed and delivered to Parent the Preferred Purchase Agreement; (i) Merger Sub shall have acquired all the Preferred Shares from the Preferred Stockholder pursuant to the Preferred Purchase Agreement; (j) that the holders of the Warrants referred to in Section 2.2 shall have agreed in writing that such Warrants shall be cancelled at the Effective Time; (k) that the Company employees listed on Schedule 5.4 of the Parent Disclosure Schedule shall have executed and delivered to Parent and the Company agreements (and, as applicable, releases) in the forms included as part of Schedule 5.4 of the Parent Disclosure Letter (and the revocation period provided for in any such release shall have expired); and (l) the Company shall have delivered to the Parent an opinion of Xxxxx & Xxxxxxx, LTD, dated the Closing Date, to the effect that the Company is duly incorporated, validly existing and in good standing under the State of Rhode Island and that this Agreement has been duly authorized, executed and delivered by the Company and is enforceable against the Company in accordance with its terms.

Conditions of Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction at or prior to the Closing of the following conditions (which may be conditions, unless specifically waived in whole or in part writing by Parent): : (a) the Company shall have performed all of the obligations required to be performed by it under this Agreement on or before the Closing Date; (b) the The representations and warranties of the Company and the Principal Stockholders set forth in Section 3.2 (Capitalization) of this Agreement shall be true and correct in all respects as of the date hereof and, except to of this Agreement and the extent Closing Date as though such representations and warranties speak as of an earlier date, as of the Effective Time, as though were made at on and as of the Effective Time; Closing Date. The other representations and warranties of Company and the Principal Stockholders set forth in this Agreement 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 the Closing Date (disregarding any materiality or Company Material Adverse Effect qualifiers contained in such representations and warranties), except, (i) for those representations and warranties that refer to facts existing at a specific date, which shall be true and correct in all material respects as of that date (disregarding any materiality or Company Material Adverse Effect qualifiers contained in such representations and warranties) and (ii) as of the Closing Date, for inaccuracies of representations or warranties which, individually or in the aggregate, do not have and could not reasonably be expected to have a Company Material Adverse Effect (disregarding any materiality or Company Material Adverse Effect qualifiers contained in such representations and warranties). (b) The Company, the Principal Stockholders and their Affiliates shall have performed and complied, in all material respects, with all obligations and covenants required to be performed or complied with by them under this Agreement or any Ancillary Agreement at or prior to the Closing Date. (c) The Company shall not have suffered a Company Material Adverse Effect, and no events, or facts which would reasonably be expected to result in a Company Material Adverse Effect shall have occurred or arisen. (d) (i) All terminations, consents, permits and approvals of Governmental Entities that may be necessary in connection with the execution of this Agreement and the consummation of the transactions contemplated hereby and (ii) each private third party notice, consent or waiver and termination of agreement set forth on Schedule 7.2(d) shall have been provided or obtained with no conditions attached and no expense imposed on the Company, Parent or their Affiliates. (e) No Proceeding shall be threatened or pending against the Company and no Proceeding shall be threatened or pending against a Principal Stockholder or against Parent or Merger Sub with respect to the Company, this Agreement or the transactions contemplated hereby. (f) The Board of Directors of the Company shall have obtained all Consents required from Governmental Authorities and other third parties required for unanimously approved this Agreement, the consummation of Ancillary Agreements to which the Company is or will be a party, the Merger and the other transactions contemplated herebyhereby and thereby, and such approval shall not have been withdrawn, qualified or rescinded. (g) No Stockholder shall have asserted appraisal rights in accordance with Section 262 of the DGCL or otherwise. (h) Each (i) Stockholder that has made a Stock/Cash Election shall have executed and delivered an investor representation statement (the “Investor Representation Statement”) and an underwriter lock-up agreement (the “Lock-Up Agreement”), each in form acceptable to Parent; (dii) Founder shall have executed and delivered a Restrictive Covenants Agreement, a Consulting Agreement and a Stock Vesting Agreement; (iii) each Key Employee shall have entered into a Key Employee Offer Letter and an At-Will Employment Agreement; and (iv) each Incentive Plan Payee that is a Key Employee shall have executed and delivered a Restricted Consideration Vesting Agreement, and each such agreement shall be and remain in full force and effect and no such Person shall have threatened to terminate any such agreement. (i) Each Seller shall have executed and delivered the Company Agreement and the Joinder, which shall contain a release of claims in form and substance acceptable to Parent. (j) Parent shall have received written communications from a certificate, validly executed by the parties to the contracts listed on Annex II stating that such party is aware of the proposed transfer of ownership Secretary of the Company certifying as to (i) the Parent and that such transfer will not cause such party to terminate the contract or refuse assignment resolutions of the contract, or containing such other language that is acceptable to the Parent in its sole reasonable discretion; (e) that the Company shall have received, prior to the Effective Time, from the holder Board of each Company Option and from the holder of each Restricted Stock Unit, an executed Amendment form included as part of Section 2.14 Directors of the Company Disclosure Letterapproving this Agreement, the Ancillary Agreements to which the Company is or will be a party, the Merger, and the other transactions contemplated hereby and thereby, and (fii) the Stockholder Consent. (k) Parent shall have received a certificate dated the Closing Date signed on behalf of good standing of the Company by its Chief Executive Officer or from the Chief Financial Officer confirming the matters set forth in clauses (a), (b), (c), (d) and (e) Secretary of this Section 6.4; (g) the Financial Advisor shall not have withdrawn or modified its written opinion referred to in Section 2.21; (h) that each State of the Stockholders listed on Annex I have executed State of Delaware and delivered all other jurisdictions in which the Company is required to Parent a Common Shareholders Agreement and the Preferred Stockholder has executed and delivered be qualified to Parent the Preferred Purchase Agreement; do business. (il) Merger Sub The Company shall have acquired received resignation letters from all the Preferred Shares from the Preferred Stockholder pursuant to the Preferred Purchase Agreement; (j) that the holders officers and directors of the Warrants referred to in Section 2.2 shall have agreed in writing that such Warrants shall be cancelled at Company, effective as of the Effective Time; . (km) that Parent shall have timely received the Spreadsheet Certificate from the Company employees listed on Schedule 5.4 of the Parent Disclosure Schedule shall have executed and delivered pursuant to Parent and the Company agreements Section 2.5. (and, as applicable, releasesn) in the forms included as part of Schedule 5.4 of the Parent Disclosure Letter (and the revocation period provided for in any such release shall have expired); and (l) the The Company shall have delivered to Parent the Section 280G Waiver and Consents. (o) The agreement set forth on Schedule 7.3(o) shall be and remain in full force and effect and no Person that is a party to such agreement shall have threatened to terminate such agreement. (p) Parent shall have received from the Company an opinion of Xxxxx & Xxxxxxx, LTD, dated the Closing Date, officer’s certificate certifying to the effect that fulfillment of the Company is duly incorporated, validly existing and conditions specified in good standing under the State of Rhode Island and that this Agreement has been duly authorized, executed and delivered by the Company and is enforceable against the Company in accordance with its termsSection 7.3(a) through 7.3(o).

Conditions of Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction at or prior to the Closing of the following conditions (which may be conditions, unless specifically waived in whole or in part writing by Parent): : (a) the Company shall have performed all of the obligations required to be performed by it under this Agreement on or before the Closing Date; (b) the The representations and warranties of the Company and the Principal Stockholders set forth in Section 3.2 (Capitalization) of this Agreement shall be true and correct in all respects as of the date hereof and, except to of this Agreement and the extent Closing Date as though such representations and warranties speak as of an earlier date, as of the Effective Time, as though were made at on and as of the Effective Time; Closing Date. The other representations and warranties of Company and the Principal Stockholders set forth in this Agreement 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 the Closing Date (disregarding any materiality or Company Material Adverse Effect qualifiers contained in such representations and warranties), except, (i) for those representations and warranties that refer to facts existing at a specific date, which shall be true and correct in all material respects as of that date (disregarding any materiality or Company Material Adverse Effect qualifiers contained in such representations and warranties) and (ii) as of the Closing Date, for inaccuracies of representations or warranties which, individually or in the aggregate, do not have and could not reasonably be expected to have a Company Material Adverse Effect (disregarding any materiality or Company Material Adverse Effect qualifiers contained in such representations and warranties). (b) The Company, the Principal Stockholders and their Affiliates shall have performed and complied, in all material respects, with all obligations and covenants required to be performed or complied with by them under this Agreement or any Ancillary Agreement at or prior to the Closing Date. (c) The Company shall not have suffered a Company Material Adverse Effect, and no events, or facts which would reasonably be expected to result in a Company Material Adverse Effect shall have occurred or arisen. (d) (i) All terminations, consents, permits and approvals of Governmental Entities that may be necessary in connection with the execution of this Agreement and the consummation of the transactions contemplated hereby and (ii) each private third party notice, consent or waiver and termination of agreement set forth on Schedule 7.2(d) shall have been provided or obtained with no conditions attached and no expense imposed on the Company, Parent or their Affiliates. (e) No Proceeding shall be threatened or pending against the Company and no Proceeding shall be threatened or pending against a Principal Stockholder or against Parent or Merger Sub with respect to the Company, this Agreement or the transactions contemplated hereby. (f) The Board of Directors of the Company shall have obtained all Consents required from Governmental Authorities and other third parties required for unanimously approved this Agreement, the consummation of Ancillary Agreements to which the Company is or will be a party, the Merger and the other transactions contemplated hereby; (d) the Company hereby and the Parent shall have received written communications from the parties to the contracts listed on Annex II stating that thereby, and such party is aware of the proposed transfer of ownership of the Company to the Parent and that such transfer will not cause such party to terminate the contract or refuse assignment of the contract, or containing such other language that is acceptable to the Parent in its sole reasonable discretion; (e) that the Company shall have received, prior to the Effective Time, from the holder of each Company Option and from the holder of each Restricted Stock Unit, an executed Amendment form included as part of Section 2.14 of the Company Disclosure Letter, (f) the Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by its Chief Executive Officer or the Chief Financial Officer confirming the matters set forth in clauses (a), (b), (c), (d) and (e) of this Section 6.4; (g) the Financial Advisor approval shall not have withdrawn been withdrawn, qualified or modified its written opinion referred to in Section 2.21; (h) that each of the Stockholders listed on Annex I have executed and delivered to Parent a Common Shareholders Agreement and the Preferred Stockholder has executed and delivered to Parent the Preferred Purchase Agreement; (i) Merger Sub shall have acquired all the Preferred Shares from the Preferred Stockholder pursuant to the Preferred Purchase Agreement; (j) that the holders of the Warrants referred to in Section 2.2 shall have agreed in writing that such Warrants shall be cancelled at the Effective Time; (k) that the Company employees listed on Schedule 5.4 of the Parent Disclosure Schedule shall have executed and delivered to Parent and the Company agreements (and, as applicable, releases) in the forms included as part of Schedule 5.4 of the Parent Disclosure Letter (and the revocation period provided for in any such release shall have expired); and (l) the Company shall have delivered to the Parent an opinion of Xxxxx & Xxxxxxx, LTD, dated the Closing Date, to the effect that the Company is duly incorporated, validly existing and in good standing under the State of Rhode Island and that this Agreement has been duly authorized, executed and delivered by the Company and is enforceable against the Company in accordance with its termsrescinded.

Conditions of Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect consummate the Merger are further subject to the satisfaction or waiver at or prior to the Effective Time of each of the following conditions (which may be waived in whole or in part by Parent): conditions: (a) The representations and warranties of Company and the Shareholders in this Agreement shall be true and correct in all respects on the date hereof and as of the Closing Date with the same force and effect as if made on the Closing Date (except that those representations and warranties which address matters only as of a particular date shall have been true and correct only on such date). (b) The Company shall have performed in all of the obligations material respects all agreements and covenants required to be performed by it under this Agreement on or before prior to the Closing Date; (b) the representations and warranties of the Company shall be true and correct as of the date hereof and, except to the extent such representations and warranties speak as of an earlier date, as of the Effective Time, as though made at and as of the Effective Time; . (c) the Company The Shareholders shall have obtained all Consents required from Governmental Authorities and other third parties required for the consummation delivered Certificates (or affidavits of the Merger and the transactions contemplated hereby; lost stock certificates) together with a duly executed Letters of Transmittal; (d) Qxxxx Xxxxxxx, the Company and the Parent shall have received written communications from the parties to the contracts listed on Annex II stating that such party is aware of the proposed transfer of ownership of the Company to the Parent and that such transfer will not cause such party to terminate the contract or refuse assignment of the contract, or containing such other language that is acceptable to the Parent in its sole reasonable discretion; (e) that the Company shall have received, prior to the Effective Time, from the holder of each Company Option and from the holder of each Restricted Stock Unit, an executed Amendment form included as part of Section 2.14 of the Company Disclosure Letter, (f) the Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by its Chief Executive Officer or the Chief Financial Officer confirming the matters set forth in clauses (a), (b), (c), (d) and (e) of this Section 6.4; (g) the Financial Advisor shall not have withdrawn or modified its written opinion referred to in Section 2.21; (h) that each of the Stockholders listed on Annex I Company, shall have executed and delivered to Parent a Common Shareholders Leak-Out and Lockup Agreement, substantially in the form attached hereto as Exhibit D (the “Lockup Agreement”), which Lockup Agreement and may only be released by the Preferred Stockholder has executed and delivered to Parent the Preferred Purchase Agreement; Board of Directors of Parent. (ie) Merger Sub shall have acquired all the Preferred Shares from the Preferred Stockholder pursuant to the Preferred Purchase Agreement; (j) that the holders of the Warrants referred to in Section 2.2 shall have agreed in writing that such Warrants shall be cancelled at the Effective Time; (k) that the Company employees listed on Schedule 5.4 of the Parent Disclosure Schedule Qxxxx Xxxxxxx shall have executed and delivered to Parent that certain Employment Agreement attached hereto as Exhibit E (the “Employment Agreement”) and that certain Indemnification Agreement attached hereto as Exhibit F (the Company agreements “Indemnification Agreement”). (and, as applicable, releasesf) in the forms included as part of Schedule 5.4 of the Parent Disclosure Letter (and the revocation period provided for in any such release The Shareholders shall have expiredexecuted and delivered to Parent that certain Put Agreement attached hereto as Exhibit G (the “Put Agreement”); and . (lg) the The Company shall have delivered to the Parent an opinion evidence of Xxxxx & Xxxxxxxthe resignation of Mxxxxxx Xxxxxx as the Parent’s Chief Executive Officer and as a Director of the Parentand Kxxxxx Fxxxxx as Chairman of the Parent’s Board of Directors and as Chief Visionary Officer, LTD, dated effective as of the Closing Date, Effective Time. (h) The Company shall have delivered a secretary’s certificate of the Company certifying as to the effect that Company Charter Documents and the resolutions of the shareholders of the Company is duly incorporated, validly existing and in good standing under approving the State of Rhode Island and that this Agreement has been duly authorized, executed and delivered by the Company and is enforceable against the Company in accordance with its termsMerger.

Conditions of Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction at or prior to the Closing Date of the following conditions (which may be conditions, unless waived in whole or in part writing by Parent): : (a) the Company shall have performed all of the obligations required to be performed by it under this Agreement on or before the Closing Date; (b) the The representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects (except for representations and warranties qualified by materiality which shall be true and correct in all respects) as of the date hereof of this Agreement and, except to for representations and warranties that speak as of a specific date other than the extent Closing Date (which need only be true and correct in all material respects as of such date), as of the Closing Date, with the same force and effect as though such representations and warranties speak had been made on and as of the Closing Date. (b) The Company shall have performed and complied, in all material respects, with all obligations and covenants required to be performed or complied with by it under this Agreement at or prior to the Closing Date. (c) Parent shall have received from the Company an earlier dateofficer's certificate certifying to the fulfillment of the conditions specified in Sections 10.3(a), (b) and (f). (d) Parent shall have received resolutions of the Company, certified by a Secretary, Assistant Secretary, or other appropriate officer of the Company, authorizing the execution, delivery and performance of this Agreement and the other Transactional Agreements, and resolutions of the meeting of the Shareholders (or written consent in lieu thereof), certified by a Secretary, Assistant Secretary or other appropriate officer of the Company, authorizing the execution, delivery and performance of this Agreement and the other Transactional Agreements. (e) The Company shall have delivered to Parent a certificate, dated as of a date no longer than ten days prior to the Closing Date, duly issued by the appropriate governmental authority in Colorado showing the Company is in good standing and authorized to do business. (f) From the date of this Agreement through the Effective Time, the Company shall not have suffered a Company Material Adverse Effect and no events or facts that would reasonably be expected to have a Company Material Adverse Effect shall have occurred or arisen. (g) Each of the consents identified in Section 4.5 of the Company Disclosure Schedule shall have been obtained with no material expense to the Company and shall be in full force and effect. (h) Parent shall have received a legal opinion from Xxxxxxxx, Xxxxx & Xxxxxxx, P.C., counsel to the Company, dated the Closing Date, substantially in the form attached hereto as EXHIBIT J. (i) Parent shall have received an opinion from Xxxxxxxx & Xxxxxxxx LLP, dated the Closing Date, substantially to the effect that, on the basis of certain facts, representations and assumptions set forth in such opinion, the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code and that each of Parent, Merger Sub and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, Xxxxxxxx & Xxxxxxxx LLP shall be entitled to rely upon the representations of officers of Parent and the Company substantially in the form of EXHIBITS F AND G hereto and in the Transactional Agreements. (j) As of the Effective Time, as though made at and as of the Effective Time; (c) no litigation or Proceeding shall be threatened or pending against Parent or the Company shall have obtained all Consents required from by any Governmental Authorities and other third parties required for Entity that seeks to enjoin or prevent the consummation of the Merger and Merger, or to require Parent to divest or hold separate any business in connection with the transactions contemplated hereby; Merger, or which would reasonably be expected to have a Company Material Adverse Effect. (dk) The Company shall have terminated the Company's 401(k) Plan. (l) Holders of no more than three percent of the outstanding Company and Common Stock shall have asserted appraisal rights for shares of Company Common Stock in accordance with the CBCA. (m) Parent shall have received written communications from the parties to Company the contracts listed on Annex II stating that such party is aware of the proposed transfer of ownership of the Company to the Parent and that such transfer will not cause such party to terminate the contract or refuse assignment of the contractFIRPTA Affidavit. (n) Xxxxx X. Xxxxxx, or containing such other language that is acceptable to the Parent in its sole reasonable discretion; (e) that the Company Xx. shall have received, executed the Employment Agreement. (o) Each Shareholder shall have executed a shareholders' agreement substantially in the form attached hereto as EXHIBIT K. (p) The Principal Shareholder and Revell Horsey shall have executed the Voting Agreement. (q) Immediately prior to the Effective Time, from the holder of each all Company Option and from the holder of each Restricted Stock Unit, an executed Amendment form included as part of Section 2.14 of the Company Disclosure Letter, (f) the Parent Options shall have received a certificate dated the Closing Date signed on behalf of the Company by its Chief Executive Officer or the Chief Financial Officer confirming the matters set forth in clauses (a), (b), (c), (d) and (e) of this Section 6.4; (g) the Financial Advisor shall not have withdrawn or modified its written opinion referred to in Section 2.21; (h) that each of the Stockholders listed on Annex I have executed and delivered to Parent a Common Shareholders Agreement and the Preferred Stockholder has executed and delivered to Parent the Preferred Purchase Agreement; (i) Merger Sub shall have acquired all the Preferred Shares from the Preferred Stockholder pursuant to the Preferred Purchase Agreement; (j) that the holders of the Warrants referred to in Section 2.2 shall have agreed in writing that such Warrants shall be cancelled at the Effective Time; (k) that the Company employees listed on Schedule 5.4 of the Parent Disclosure Schedule shall have executed and delivered to Parent and the Company agreements (and, as applicable, releases) in the forms included as part of Schedule 5.4 of the Parent Disclosure Letter (and the revocation period provided for in any such release shall have expired); and (l) the Company shall have delivered to the Parent an opinion of Xxxxx & Xxxxxxx, LTD, dated the Closing Date, to the effect that the Company is duly incorporated, validly existing and in good standing under the State of Rhode Island and that this Agreement has been duly authorized, executed and delivered by the Company and is enforceable against the Company in accordance with its termsterminated.