Common use of Conditions Precedent to Obligations of Buyer and Merger Sub Clause in Contracts

Conditions Precedent to Obligations of Buyer and Merger Sub. The obligations of Buyer and Xxxxxx Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction of each of the following conditions (any or all of which may be waived by Buyer, in whole or in part, to the extent permitted by Applicable Law): (a) (i) each of the representations and warranties of the Company contained in Section 3.05(a) and Section 3.06 (but solely with respect to the Company’s Company Securities) shall in each case be true and correct, except for any de minimis in accuracies, as of the date hereof and as of the Closing, as if made at and as of the Closing (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct, except for any de minimis in accuracies, only as of such date), (ii) each of the representations and warranties of the Company contained in Section 3.01, but solely with respect to the Company, Section 3.02, Section 3.03 (solely with respect to the Company's Organizational Documents), Section 3.05(b), Section 3.05(c) and Section 3.23 shall in each case be true and correct in all material respects, as of the date hereof and as of the Closing, as if made at and as of the Closing (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct in all material respects only as of such date), (iii) the representations and warranties of the Company contained in Section 3.10(a)(i) shall be true and correct as of the date hereof and as of the Closing, as if made at and as of such time, and (iv) each of the other representations and warranties of the Company contained in Article 3 (in each case disregarding all materiality, Material Adverse Effect and similar qualifications contained therein) shall be true and correct as of the date hereof and as of the Closing, as if made at and as of such time (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct only as of such date), with only such exceptions, in the case of this clause (iii), as would not have a Material Adverse Effect, and Buyer shall have received a certificate signed by an authorized officer of the Company certifying the foregoing in this clause (a); (b) the Company shall have performed and complied (or cured any failure to perform or comply) in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it prior to the Closing, and Xxxxx shall have received a certificate signed by an authorized officer of the Company certifying the foregoing in this clause (b); (c) there shall not be in effect any Order by a Governmental Authority of competent jurisdiction entered or issued after the date hereof that makes illegal, prohibits or prevents the consummation of the Closing; (d) the waiting period (and any extension thereof including any timing agreement with a Governmental Authority) applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted; and (e) since the date hereof, there shall not have occurred a Material Adverse Effect that is continuing.

Conditions Precedent to Obligations of Buyer and Merger Sub. The obligations obligation of Buyer and Xxxxxx Merger Sub to consummate the transactions contemplated by this Agreement are Transactions is subject to the satisfaction fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Buyer, Buyer and Merger Sub in whole or in part, part to the extent permitted by Applicable applicable Law): (a) (i) each of the The representations and warranties of the Company contained set forth in Section 3.05(a4.1 (Organization and Good Standing), Section 4.2 (Authorization of Agreement), Section 4.4 (Capitalization), Section 4.5 (Subsidiaries), Section 4.9 (Taxes), Section 4.12 (Intellectual Property), Section 4.17 (Compliance with Laws; Permits), Section 4.18 (Environmental Matters), Section 4.22 (Financial Advisors), Section 4.24 (Privacy) and Section 3.06 4.25 (but solely with respect to the Company’s Company SecuritiesRegulatory) shall in each case be true and correct, except for any de minimis in accuracies, as of the date hereof and as of the Closing, as if made at and as of the Closing (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct, except for any de minimis in accuracies, only as of such date), (ii) each of the representations and warranties of the Company contained in Section 3.01, but solely with respect to the Company, Section 3.02, Section 3.03 (solely with respect to the Company's Organizational Documents), Section 3.05(b), Section 3.05(c) and Section 3.23 shall in each case be true and correct in all material respects, as of the date hereof and as of the Closing, as if made at and as of the Closing (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct in all material respects only as of such date), (iii) the representations and warranties of the Company contained in Section 3.10(a)(i) shall be true and correct as of the date hereof and as of the Closing, as if made at and as of such timerespects, and (ivii) each of the all other representations and warranties of the Company contained set forth in Article 3 (in each case disregarding all materiality, Material Adverse Effect and similar qualifications contained therein) IV shall be true and correct and in each of cases (i) and (ii), as of the date hereof Closing Date as if made on and as of the Closing, as if made at and as of such time Closing Date (except for to the extent that any such representations and warranties that are made only as of representation or warranty, by its terms, is expressly limited to a specific date, in which shall be true and correct only case, as of such specific date), with only such exceptions, in the case of this clause (iii), as would not have a Material Adverse Effect, and Buyer shall have received a certificate signed by an authorized officer of the Company certifying Company, dated the Closing Date, to the foregoing in this clause (a)effect; (b) the The Company shall have performed and complied (or cured any failure to perform or comply) in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it on or prior to the ClosingClosing Date, and Xxxxx Buyer shall have received a certificate signed by an authorized officer of the Company certifying Company, dated the Closing Date, to the foregoing in this clause (b)effect; (c) there shall not be in effect any Order by a Governmental Authority of competent jurisdiction entered or issued after Since the date hereof of this Agreement, there has been no development, change, event or occurrence that, individually or in the aggregate, has had, or would be reasonably likely to have, a Material Adverse Effect; and (d) Buyer shall have received the following: (i) The Stockholder Approval, duly executed by the Requisite Holders; (ii) a copy of the D&O Tail Policy and an invoice stating the required premium therefor, together with evidence reasonably acceptable to Buyer that makes illegalthe D&O Tail Policy is in full force and effect on the Closing Date and that all such premiums or other obligations of the Company for such D&O Tail Policy have been paid, prohibits satisfied or prevents the consummation discharged in full as of the Closing; (diii) Certificates of good standing with respect to the Company and any Subsidiary, dated not more than five (5) Business Days prior to the Closing Date, issued by the Secretary of State of the applicable jurisdiction of organization; (a) A fully-executed Payoff Letter issued by each holder of Payoff Debt and final invoices from each payee of Company Transaction Expenses, which has been received at least three (3) Business Days prior to the Closing Date, (b) a fully executed common terms agreement (the “Brano Common Terms Agreement”, by and between the Company, Plug Power and Brano Technik s.r.o. and a fully executed copy of the Note A, Note B and Note C (in each case as defined in the Brano Common Terms Agreement) thereunder, along with such fully executed subordination agreement as the Senior Lender may require and (c) a fully executed common terms agreement (the “Ezpada Common Terms Agreement”) by and between the Company, Plug Power and Ezpada s.r.o. and a fully executed copy of the Note A, Note B and Note C (in each case as defined in the Ezpada Common Terms Agreement) thereunder, along with such fully executed subordination agreement as the Senior Lender may require; (v) A certificate, validly executed by the secretary of the Company for and on the Company’s behalf, certifying as to the terms and effectiveness of the Company’s and each of its Subsidiary’s organizational documents, the valid adoption of resolutions of the board of directors of the Company whereby the board of directors of the Company unanimously approved this Agreement, the Merger and the other Transactions, and the valid adoption of resolutions of the Company’s Stockholders whereby the requisite Stockholders approve this Agreement, the Merger and the other Transactions; (vi) The Management Employee Employment Arrangements executed concurrently with this Agreement by each Management Employee shall be in full force and effect and shall not have been revoked, rescinded or otherwise repudiated by such Management Employee, as applicable; (vii) The Company shall have obtained and delivered to Buyer all consents and provided evidence of all notices set forth on Schedule 7.2(d)(vii) in form and substance satisfactory to Buyer; (viii) The Company shall have obtained and delivered to Buyer all amendments to Contracts set forth on Schedule 7.2(d)(viii) in form and substance satisfactory to Buyer. (ix) The Company shall have obtained and delivered to Buyer evidence that the Contracts set forth on Schedule 7.2(d)(ix) have been terminated or will terminate effective upon the Closing, in form and substance satisfactory to Buyer; (x) with respect to the Leased Real Property, such affidavits reasonably sufficient for the title insurance company procured by Buyer to delete any exceptions from Buyer’s or any lender’s title policies for parties-in-possession and mechanic’s or materialmen’s Liens, and such other affidavits as may be reasonably required by the title company of Buyer in connection with the issuance to Buyer or its lenders of title insurance policies with a “non- imputation” endorsement, in each case insuring good and marketable title to the Leased Real Property, subject only to the Permitted Exceptions without the standard pre-printed exceptions; (xi) the waiting period (and any extension thereof including any timing agreement with a Governmental Authority) applicable to the transactions contemplated by this Agreement under the HSR Act R&W Insurance Company shall have expired or early termination shall have been grantedbound the R&W Policy Binder in form and substance satisfactory to Buyer; (xii) an intellectual property assignment agreement and restrictive covenant agreement, in each case, validly executed by Vxxxxxxx Prerad and the Company, in form and substance satisfactory to Buyer; (xiii) an intellectual property assignment agreement and restrictive covenant agreement, in each case, validly executed by Bxxxx Xxxxx and the Company, in form and substance satisfactory to Buyer; (xiv) an intellectual property assignment agreement validly executed by together with Lxxxxxxx Xxxxx and the Company, in form and substance satisfactory to Buyer; (xv) a confirmatory assignment agreement validly executed by Mxxx Xxxx and ReLow Group, LLC, in form and substance satisfactory to Buyer; and (exvi) since the date hereof, there shall not have occurred a Material Adverse Effect that is continuingbe no Dissenting Shares.

Conditions Precedent to Obligations of Buyer and Merger Sub. The obligations of Buyer and Xxxxxx Merger Sub to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction satisfaction, on or prior to the Closing, of each of the following conditions (any or all of which may be waived by Buyer, Buyer and Merger Sub in whole or in part, part to the extent permitted by Applicable applicable Law): (a) (i) each of the representations and warranties of the Company contained set forth in Article IV, other than the Fundamental Representations and the representation in Section 3.05(a) and Section 3.06 (but solely with respect to the Company’s Company Securities) 4.8(a)(i), shall in each case be true and correctcorrect (without giving effect to any “materiality”, except for “Material Adverse Effect” or similar qualifiers contained in any de minimis in accuracies, as of the date hereof such representations and as of the Closing, warranties) as if made at on and as of the Closing (except for to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), except where the failure of such representations and warranties that are made only as of a specific date, which shall to be so true and correctcorrect would not, except for any de minimis individually or in accuraciesthe aggregate, only as of such date), have a Material Adverse Effect; (ii) each of the representations and warranties of the Company Fundamental Representations (without giving effect to any “materiality”, “Material Adverse Effect” or similar qualifiers contained in Section 3.01, but solely with respect to the Company, Section 3.02, Section 3.03 (solely with respect to the Company's Organizational Documents), Section 3.05(b), Section 3.05(c) and Section 3.23 shall in each case be true and correct in all material respects, as any of the date hereof and as of the Closing, as if made at and as of the Closing (except for any such representations and warranties that are made only as of a specific date, which warranties) shall be true and correct in all material respects only as of the Closing as if made on and as of the Closing (except to the extent that any such representation, by its terms, is expressly limited to a specific date, in which case, as of such specific date), ; and (iii) the representations representation and warranties of the Company contained warranty in Section 3.10(a)(i4.8(a)(i) shall be true and correct in all respects as of the date hereof Closing as if made on and as of the Closing, as if made at and as of such time, and (iv) each of the other representations and warranties of the Company contained in Article 3 (in each case disregarding all materiality, Material Adverse Effect and similar qualifications contained therein) shall be true and correct as of the date hereof and as of the Closing, as if made at and as of such time (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct only as of such date), with only such exceptions, in the case of this clause (iii), as would not have a Material Adverse Effect, and Buyer shall have received a certificate signed by an authorized officer of the Company certifying the foregoing in this clause (a); (b) the The Company shall have performed and complied (or cured any failure to perform or comply) in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it on or prior to the Closing; (c) Since the date of this Agreement, and Xxxxx there shall have not occurred a Material Adverse Effect; and (d) Buyer shall have received a certificate from the Company, dated as of the Closing Date, signed by an authorized officer of the Company certifying as to the foregoing in this clause (b); (c) there shall not be in effect any Order by a Governmental Authority of competent jurisdiction entered or issued after the date hereof that makes illegal, prohibits or prevents the consummation satisfaction of the Closing; (dconditions set forth in Section 7.2(a), Section 7.2(b) the waiting period (and any extension thereof including any timing agreement with a Governmental Authority) applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted; and (e) since the date hereof, there shall not have occurred a Material Adverse Effect that is continuingSection 7.2(c).

Conditions Precedent to Obligations of Buyer and Merger Sub. The obligations obligation of Buyer and Xxxxxx Merger Sub to consummate the transactions contemplated by this Agreement are Transactions is subject to the satisfaction fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Buyer, Buyer in whole or in part, part to the extent permitted by Applicable applicable Law): (a) (i) each of the The representations and warranties of the Company contained set forth in Section 3.05(a) and Section 3.06 (but solely with respect to the Company’s Company Securities) Article IV shall in each case be true and correctcorrect (without giving effect to any “material”, “materially”, “materiality”, “Material Adverse Effect”, “material adverse change” or similar qualifiers contained in any of such representations and warranties), except for any de minimis such failures to be true and correct that do not have and would not reasonably be expected to have, individually or in accuraciesthe aggregate, a Material Adverse Effect, as of the date hereof and as of the Closing, Closing Date as if made at on and as of the Closing such dates (except for to the extent that any such representations and warranties that are made only as of representation or warranty, by its terms, is expressly limited to a specific date, in which shall be true and correctcase, except for any de minimis in accuracies, only as of such date), (ii) each of the representations and warranties of the Company contained in Section 3.01, but solely with respect to the Company, Section 3.02, Section 3.03 (solely with respect to the Company's Organizational Documents), Section 3.05(b), Section 3.05(c) and Section 3.23 shall in each case be true and correct in all material respects, as of the date hereof and as of the Closing, as if made at and as of the Closing (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct in all material respects only as of such date), (iii) the representations and warranties of the Company contained in Section 3.10(a)(i) shall be true and correct as of the date hereof and as of the Closing, as if made at and as of such time, and (iv) each of the other representations and warranties of the Company contained in Article 3 (in each case disregarding all materiality, Material Adverse Effect and similar qualifications contained therein) shall be true and correct as of the date hereof and as of the Closing, as if made at and as of such time (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct only as of such date), with only such exceptions, in the case of this clause (iii), as would not have a Material Adverse Effect, and Buyer shall have received a certificate signed by an authorized officer of the Company certifying the foregoing in this clause (a); (b) the The Company shall have performed and complied (or cured any failure to perform or comply) in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it on or prior to the Closing, and Xxxxx Closing Date; (c) Each of the Rollover Investors set forth on Schedule 7.2(c) shall have consummated on the Closing Date the Rollover Investment in accordance with the terms of the Rollover Letter; and (d) Buyer shall have received a certificate signed by an authorized officer of the Company Company, dated the Closing Date, certifying as to the foregoing matters in Section 7.2(a) and Section 7.2(b). If the Closing occurs, all closing conditions set forth in this clause (b); (c) there shall Section 7.2 which have not be in effect any Order by a Governmental Authority of competent jurisdiction entered or issued after the date hereof that makes illegal, prohibits or prevents the consummation been fully satisfied as of the Closing; (d) the waiting period (and any extension thereof including any timing agreement with a Governmental Authority) applicable Closing shall be deemed to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted; and (e) since the date hereof, there shall not have occurred a Material Adverse Effect that is continuingfully waived.

Conditions Precedent to Obligations of Buyer and Merger Sub. The obligations of Buyer and Xxxxxx Merger Sub to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction satisfaction, on or prior to the Closing, of each of the following conditions (any or all of which may be waived by Buyer, in whole or in part, to the extent permitted by Applicable Law):conditions: (a) (i) each of the representations representation and warranties of the Company contained set forth in Section 3.05(a) and Section 3.06 (but solely with respect to Article IV, other than the Company’s Company Securities) shall in each case be true and correctFundamental Representations, except for any de minimis in accuracies, as of the date hereof and as of the Closing, as if made at and as of the Closing (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct, except for any de minimis in accuracies, only as of such date), (ii) each of the representations and warranties of the Company contained in Section 3.01, but solely with respect to the Company, Section 3.02, Section 3.03 (solely with respect to the Company's Organizational Documents), Section 3.05(b), Section 3.05(c) and Section 3.23 shall in each case be true and correct in all material respects, as of the date hereof and as of the Closing, as if made at and as of the Closing (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct in all material respects only as if made on and as of the Closing (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), ) and (iiiii) the representations and warranties of the Company contained in Section 3.10(a)(i) Fundamental Representations shall be true and correct in all respects as of the date hereof Closing as if made on and as of the Closing, as if made at and as of such time, and (iv) each of the other representations and warranties of the Company contained in Article 3 (in each case disregarding all materiality, Material Adverse Effect and similar qualifications contained therein) shall be true and correct as of the date hereof and as of the Closing, as if made at and as of such time Closing (except for to the extent that any such representations and warranties that are made only as of representation or warranty, by its terms, is expressly limited to a specific date, in which shall be true and correct only case, as of such specific date), with only such exceptions, in the case of this clause (iii), as would not have a Material Adverse Effect, and Buyer shall have received a certificate signed by an authorized officer of the Company certifying the foregoing in this clause (a); (b) the Company shall have performed and complied (or cured any failure to perform or comply) in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it on or prior to the Closing, and Xxxxx shall have received a certificate signed by an authorized officer of the Company certifying the foregoing in this clause (b); (c) there shall not be in effect any Order by a Governmental Authority of competent jurisdiction entered or issued after the date hereof that makes illegal, prohibits or prevents the consummation transition of the ClosingCompany’s core technology platform from Revenova to Mastermind shall have been substantially completed to the reasonable satisfaction of Buyer (subject, in all respects, to Section 11.01(b)(i)); (d) since the waiting period (and date of this Agreement, there shall not have occurred any extension thereof including any timing agreement with event, occurrence, fact, circumstance or change that has had, or would reasonably be expected to have, a Governmental Authority) applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been grantedMaterial Adverse Effect; and (e) since the date hereof, there Company shall not have occurred a Material Adverse Effect that is continuingdelivered (or will deliver at Closing) to the Buyer the documents and deliveries set forth in Section 3.02.