Common use of Conditions to Obligation of the Acquiror Clause in Contracts

Conditions to Obligation of the Acquiror. The obligation of the Acquiror to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (i) this Agreement and the Merger shall have received the Requisite Target Shareholder Approval and the number of Dissenting Shares shall not exceed 10% of the number of outstanding Target Shares; (ii) the Target and its Subsidiaries shall have procured all of the third party consents specified in Section 5(b) above, unless, in the opinion of the Acquiror, acting reasonably, the failure to obtain such consents would not have a material adverse effect on the operations of the Surviving Corporation; (iii) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date; (iv) the Target shall have performed and complied with all of its covenants and obligations hereunder in all material respects through the Closing; (v) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or (D) affect adversely the right of any of the former Subsidiaries of the Target to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (vi) since the date of this Agreement, there shall have been no material adverse change in the business, assets, financial condition, operations, results of operations or prospects of the Target and its Subsidiaries taken as a whole, it being understood that a material adverse change in the employee base of the Target and its Subsidiaries may constitute such a material adverse change; (vii) the Target shall have delivered to the Acquiror a certificate of its Chief Executive Officer and Chief Financial Officer to the effect that each of the conditions specified above in Section 6(a)(i)-(vi) is satisfied in all respects; (viii) the Registration Statement shall have become effective under the Securities Act prior to the mailing of the Disclosure Document to Target Shareholders; (ix) the Acquiror Shares that will be issued in the Merger shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance; (x) the Acquiror shall have received an opinion from Xxxxxx & Whitney LLP, dated as of the Effective Time, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinions which are consistent with the state of facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and that accordingly: (A) No gain or loss will be recognized by the Acquiror, Acquiror Sub or the Target as a result of the Merger. (B) No gain or loss will be recognized by the shareholders of Target who exchange Target Shares for Acquiror Shares pursuant to the Merger, except with respect to any cash received by such Target shareholders in the Merger. (C) Gain, if any, but not loss, will be recognized by Target shareholders upon the exchange of Target Shares for cash pursuant to the Merger. Such gain will be recognized, but not in excess of the amount of cash, in an amount equal to the difference, if any, between (a) the fair market value of the Acquiror Shares and cash received and (b) the Target shareholder's adjusted tax basis in the Target Shares surrendered in exchange therefor pursuant to the Merger. If the receipt of cash payments has the effect of a distribution of a dividend to a Target Shareholder, some or all of the gain recognized will be treated as a dividend taxed as ordinary income. If the exchange does not have the effect of a distribution of a dividend, all of the gain recognized would be a capital gain, provided the Target Shares are a capital asset in the hands of the Target shareholder at the time of the Merger. (D) The aggregate tax basis of the Acquiror Shares received by a Target Shareholder who exchanges Target Shares in the Merger will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefor, decreased by the amount of any cash received by such Target Shareholder which is treated as a redemption rather than a dividend and increased by the amount of any non-dividend gain recognized by such Target Shareholder in connection with the Merger. (E) The holding period of the Acquiror Shares received by a Target Shareholder pursuant to the Merger will include the period during which the Target Shares surrendered therefor were held, provided the Target Shares are a capital asset in the hands of the Target shareholder at the time of the Merger. In rendering such opinion, such counsel may require and rely upon representations and covenants including those contained in certificates of officers of the Acquiror, Acquiror Sub and the Target and others, including certain Target shareholders who are parties to this Agreement. (xi) the Acquiror shall have received the resignations, effective as of the Closing, of each director and officer of the Target and its Subsidiaries other than those whom the Acquiror shall have specified in writing at least four business days prior to the Closing; (xii) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Acquiror, acting reasonably; and (xiii) Xxxxxx X. Fine shall have entered into an employment agreement with the Acquiror in form and substance acceptable to the Acquiror and Xxxxxx X. Fine. The Acquiror may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.

Conditions to Obligation of the Acquiror. The obligation obligations of the Acquiror and Acquiror Sub to consummate the transactions to be performed by it in connection with the Closing is Merger are also subject to satisfaction the fulfillment or written waiver by the Acquiror prior to the Effective Time of each of the following conditions: (ia) The representations and warranties of the Company and its Subsidiaries set forth in this Agreement shall be true and correct (disregarding for these purposes references to materiality standards and qualifications of "Material Adverse Effect" in specific representations and warranties) as of the date of this Agreement and the Merger shall have received the Requisite Target Shareholder Approval and the number of Dissenting Shares shall not exceed 10% as of the number Closing Date as though made on and as of outstanding Target Shares; the Closing Date except (i) 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 only as of such date, (ii) the Target and its Subsidiaries shall have procured all of the third party consents for changes specified in Section 5(b) above, unless, in the opinion of the Acquiror, acting reasonably, the failure to obtain such consents would not have a material adverse effect on the operations of the Surviving Corporation; by this Agreement or (iii) where the failure of such representations and warranties set forth in Section 3 above shall to be true and correct in all material respects at and as of are not, in the Closing Date;aggregate, reasonably likely to have a Material Adverse Effect. (ivb) the Target The Company and its Subsidiaries shall have performed and complied with all of its covenants and obligations hereunder in all material respects through the Closing; (vdisregarding for these purposes references to materially in specific agreements and covenants) no action, suit, or proceeding shall all obligations required to be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated performed by this Agreement, (B) cause any of the transactions contemplated by them under this Agreement to be rescinded following consummation, (C) affect adversely the right of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or (D) affect adversely the right of any of the former Subsidiaries of the Target to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (vi) since the date of this Agreement, there shall have been no material adverse change in the business, assets, financial condition, operations, results of operations or prospects of the Target and its Subsidiaries taken as a whole, it being understood that a material adverse change in the employee base of the Target and its Subsidiaries may constitute such a material adverse change; (vii) the Target shall have delivered to the Acquiror a certificate of its Chief Executive Officer and Chief Financial Officer to the effect that each of the conditions specified above in Section 6(a)(i)-(vi) is satisfied in all respects; (viii) the Registration Statement shall have become effective under the Securities Act prior to the mailing of the Disclosure Document to Target Shareholders; (ix) the Acquiror Shares that will be issued in the Merger shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance; (x) the Acquiror shall have received an opinion from Xxxxxx & Whitney LLP, dated as of the Effective Time, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinions which are consistent with the state of facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and that accordingly: (A) No gain or loss will be recognized by the Acquiror, Acquiror Sub or the Target as a result of the Merger. (B) No gain or loss will be recognized by the shareholders of Target who exchange Target Shares for Acquiror Shares pursuant to the Merger, except with respect to any cash received by such Target shareholders in the Merger. (C) Gain, if any, but not loss, will be recognized by Target shareholders upon the exchange of Target Shares for cash pursuant to the Merger. Such gain will be recognized, but not in excess of the amount of cash, in an amount equal to the difference, if any, between (a) the fair market value of the Acquiror Shares and cash received and (b) the Target shareholder's adjusted tax basis in the Target Shares surrendered in exchange therefor pursuant to the Merger. If the receipt of cash payments has the effect of a distribution of a dividend to a Target Shareholder, some or all of the gain recognized will be treated as a dividend taxed as ordinary income. If the exchange does not have the effect of a distribution of a dividend, all of the gain recognized would be a capital gain, provided the Target Shares are a capital asset in the hands of the Target shareholder at the time of the Merger. (D) The aggregate tax basis of the Acquiror Shares received by a Target Shareholder who exchanges Target Shares in the Merger will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefor, decreased by the amount of any cash received by such Target Shareholder which is treated as a redemption rather than a dividend and increased by the amount of any non-dividend gain recognized by such Target Shareholder in connection with the Merger. (E) The holding period of the Acquiror Shares received by a Target Shareholder pursuant to the Merger will include the period during which the Target Shares surrendered therefor were held, provided the Target Shares are a capital asset in the hands of the Target shareholder at the time of the Merger. In rendering such opinion, such counsel may require and rely upon representations and covenants including those contained in certificates of officers of the Acquiror, Acquiror Sub and the Target and others, including certain Target shareholders who are parties to this Agreement. (xi) the Acquiror shall have received the resignations, effective as of the Closing, of each director and officer of the Target and its Subsidiaries other than those whom the Acquiror shall have specified in writing at least four business days prior to the Closing; (xii) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Acquiror, acting reasonably; and (xiii) Xxxxxx X. Fine shall have entered into an employment agreement with the Acquiror in form and substance acceptable to the Acquiror and Xxxxxx X. Fine. The Acquiror may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the ClosingEffective Time. (c) The Acquiror shall have received a certificate, dated the Closing Date, signed on behalf of the Company by the Chief Executive Officer and the Vice President of Finance of the Company verifying satisfaction of the conditions set forth in Sections 6.03(a) and 6.03(b). (d) Dissenters' rights shall not have been perfected pursuant to Section 14-2-1321 of the GBCC by shareholders of the Company with respect to more than 10% of the issued and outstanding shares of Company Common Stock immediately prior to the Effective Time. (e) No Burdensome Condition shall have been imposed upon Acquiror, Acquiror Sub, the Surviving Corporation or any of their Affiliates. (f) Since the date hereof, there shall not have occurred any event, circumstance or development that has had or is reasonably likely to have a Material Adverse Effect with respect to the Company. (g) The waivers, consents, amendments and modifications set forth in Section 5.09 of the Company's Disclosure Letter shall have been obtained without the imposition of costs, expenses or fees payable by the Company or the Surviving Corporation to the other party to the applicable Company Contract.

Conditions to Obligation of the Acquiror. The obligation of the Acquiror to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (i) this Agreement and the Merger shall have received the Requisite Target Shareholder Approval and the number of Dissenting Shares shall not exceed 10% of the number of outstanding Target Shares; (ii) the Target and its Subsidiaries shall have procured all of the third party consents specified in Section 5(b) above, unless, in the opinion of the Acquiror, acting reasonably, the failure to obtain such consents would not have a material adverse effect on the operations of the Surviving Corporation; (iii) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date; (iv) the Target shall have performed and complied with all of its covenants and obligations hereunder in all material respects through the Closing; (v) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or (D) affect adversely the right of any of the former Subsidiaries of the Target to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (vi) since the date of this Agreement, there shall have been no material adverse change in the business, assets, financial condition, operations, results of operations or prospects of the Target and its Subsidiaries taken as a whole, it being understood that a material adverse change in the employee base of the Target and its Subsidiaries may constitute such a material adverse change; (vii) the Target shall have delivered to the Acquiror a certificate of its Chief Executive Officer and Chief Financial Officer to the effect that each of the conditions specified above in Section 6(a)(i)-(vi) is satisfied in all respects; (viii) the Registration Statement shall have become effective under the Securities Act prior to the mailing of the Disclosure Document to Target Shareholders; (ix) the Acquiror Shares that will be issued in the Merger shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance; (x) the Acquiror shall have received an opinion from Xxxxxx Dorsxx & Whitney Xhitxxx LLP, dated as of the Effective Time, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinions which are consistent with the state of facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and that accordingly: (A) No gain or loss will be recognized by the Acquiror, Acquiror Sub or the Target as a result of the Merger. (B) No gain or loss will be recognized by the shareholders of Target who exchange Target Shares for Acquiror Shares pursuant to the Merger, except with respect to any cash received by such Target shareholders in the Merger. (C) Gain, if any, but not loss, will be recognized by Target shareholders upon the exchange of Target Shares for cash pursuant to the Merger. Such gain will be recognized, but not in excess of the amount of cash, in an amount equal to the difference, if any, between (a) the fair market value of the Acquiror Shares and cash received and (b) the Target shareholder's adjusted tax basis in the Target Shares surrendered in exchange therefor pursuant to the Merger. If the receipt of cash payments has the effect of a distribution of a dividend to a Target Shareholder, some or all of the gain recognized will be treated as a dividend taxed as ordinary income. If the exchange does not have the effect of a distribution of a dividend, all of the gain recognized would be a capital gain, provided the Target Shares are a capital asset in the hands of the Target shareholder at the time of the Merger. (D) The aggregate tax basis of the Acquiror Shares received by a Target Shareholder who exchanges Target Shares in the Merger will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefor, decreased by the amount of any cash received by such Target Shareholder which is treated as a redemption rather than a dividend and increased by the amount of any non-dividend gain recognized by such Target Shareholder in connection with the Merger. (E) The holding period of the Acquiror Shares received by a Target Shareholder pursuant to the Merger will include the period during which the Target Shares surrendered therefor were held, provided the Target Shares are a capital asset in the hands of the Target shareholder at the time of the Merger. In rendering such opinion, such counsel may require and rely upon representations and covenants including those contained in certificates of officers of the Acquiror, Acquiror Sub and the Target and others, including certain Target shareholders who are parties to this Agreement. (xi) the Acquiror shall have received the resignations, effective as of the Closing, of each director and officer of the Target and its Subsidiaries other than those whom the Acquiror shall have specified in writing at least four business days prior to the Closing; (xii) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Acquiror, acting reasonably; and (xiii) Xxxxxx Danixx X. Fine Xxxe shall have entered into an employment agreement with the Acquiror in form and substance acceptable to the Acquiror and Xxxxxx Danixx X. FineXxxe. The Acquiror may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.