Common use of Conditions to Obligation of the Company to Effect the Mergers Clause in Contracts

Conditions to Obligation of the Company to Effect the Mergers. The obligation of the Company to effect the Mergers is further subject to the satisfaction (or waiver by the Company to the extent permitted by applicable Law) of the following conditions: (a) The representations and warranties of Parent and each Merger Sub set forth in Section 4.2(a), Section 4.12(a) and Section 4.18 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 such time (except to the extent expressly made as of an earlier date, in which case as of such date), in each case, except for de minimis inaccuracies; (ii) the representations and warranties of Parent and each Merger Sub set forth in the first sentence of Section 4.1(a), Section 4.2(b), Section 4.3(a), Section 4.3(b) and Section 4.20 shall be true and correct in all material respects, at and as of the date of this Agreement and at and as of Closing, 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); (iii) the representations and warranties of Parent and each Merger Sub set forth in Article 4 that are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of Closing, 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); and (iv) the other representations and warranties of Parent and each Merger Sub set forth in Article 4 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 such time (except to the extent expressly made as of an earlier date, in which case as of such date), except with respect to this clause (iv) where the failure of such representations and warranties to be so true and correct would not have or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. (b) Parent and each Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing. (c) Since the date of this Agreement, there shall not have occurred any event, change, occurrence, effect or development that has had, or is reasonably likely to have, a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) The Company shall have received the opinion of Wachtell, Lipton, Xxxxx & Xxxx, or, if Wachtell, Lipton, Xxxxx & Xxxx is unable to provide such opinion, another nationally recognized Tax counsel reasonably satisfactory to the Company (“Company Tax Counsel”), dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, (i) the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) the Mergers will not result in gain recognition pursuant to Section 367(a)(1) of the Code by Persons who are stockholders of the Company immediately prior to the First Effective Time (other than any such stockholder who would be a “five-percent transferee shareholder” (within the meaning of Treasury Regulations Section 1.367(a)-3(c)(5)(ii)) of Parent that does not enter into a five-year gain recognition agreement in the form provided in Treasury Regulations Section 1.367(a)-8(c) and comply with the requirements of that agreement and Treasury Regulations Section 1.367(a)-8 for avoiding the recognition of gain). In connection with rendering such opinion, Company Tax Counsel shall be entitled to receive and may rely on the Parent Tax Certificate and the Company Tax Certificate.

Conditions to Obligation of the Company to Effect the Mergers. The obligation of the Company to effect the Mergers is further subject to the satisfaction fulfillment (or waiver by the Company Company, to the extent permitted by permissible under applicable Law) at or prior to the Effective Time of the following conditions: (a) (i) The representations and warranties of Parent and each Merger Sub set forth in Section 4.2(a), Section 4.12(a) and Section 4.18 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 such time (except to the extent expressly made as of an earlier date, in which case as of such date), in each case, except for de minimis inaccuracies; (ii) the representations and warranties of Parent and each Merger Sub set forth in the first sentence of Section 4.1(a), Section 4.2(b), Section 4.3(a), Section 4.3(b) and Section 4.20 shall be true and correct in all material respects, at and as of the date of this Agreement and at and as of Closing, 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); (iii) the representations and warranties of Parent and each Merger Sub Subs set forth in Article 4 IV that are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of Closing, 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); and (iv) the other representations and warranties of Parent and each Merger Sub set forth in Article 4 shall be true and correct both at and as of the date of this Agreement and at and as of the Closing, Closing Date as if though made at and as of such time the Closing Date, (except to ii) other than Section 4.2, Section 4.14 and Section 4.19, the extent expressly made as of an earlier date, in which case as of such date), except with respect to this clause (iv) where the failure of such representations and warranties to of Parent and Merger Subs set forth in Article IV that are not qualified by a “Parent Material Adverse Effect” qualification shall be so true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have or would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, (iii) the representations and warranties of Parent and Merger Subs set forth in Section 4.2(a) and Section 4.2(b) shall be true and correct other than in any de minimis respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (iv) the representations and warranties of Parent and Merger Subs set forth in Section 4.2(c), Section 4.14 and Section 4.19 shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; 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) Parent and each Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the ClosingEffective Time. (c) Since the date of this Agreement, there shall not have occurred been any Parent Material Adverse Effect or any event, changechange or effect that would, occurrence, effect or development that has hadindividually, or is in the aggregate, reasonably likely be expected to have, have a Parent Material Adverse Effect. (d) (i) Parent shall have delivered to the Company a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or another senior officera duly authorized executive officer of Parent, certifying to the effect that the conditions set forth in Section 6.2(a)) through Section 6.2(c) for each of Parent and each Merger Sub have been satisfied and (ii) each Merger Sub shall have delivered to the Company a certificate, dated the Closing Date and signed by a duly authorized executive officer of such Merger Sub, certifying to the effect that the conditions set forth in Section 6.2(a) and Section 6.2(b) and Section 6.2(c) for such Merger Sub have been satisfied. (e) The Company shall have received the opinion of Wachtell, Lipton, Xxxxx & Xxxx, or, if Wachtell, Lipton, Xxxxx & Xxxx is unable to provide such opinion, another nationally recognized Tax counsel reasonably satisfactory to the Company (“Company Tax Counsel”), dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, (i) the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) the Mergers will not result in gain recognition pursuant to Section 367(a)(1) of the Code by Persons who are stockholders of the Company immediately prior to the First Effective Time (other than any such stockholder who would be a “five-percent transferee shareholder” (within the meaning of Treasury Regulations Section 1.367(a)-3(c)(5)(ii)) of Parent that does not enter into a five-year gain recognition agreement in the form provided in Treasury Regulations Section 1.367(a)-8(c) and comply with the requirements of that agreement and Treasury Regulations Section 1.367(a)-8 for avoiding the recognition of gain). In connection with rendering such opinion, Company Tax Counsel shall be entitled to receive and may rely on the Parent Tax Certificate and the Company Tax Certificate.

Conditions to Obligation of the Company to Effect the Mergers. The obligation of the Company to effect the Mergers and the other transactions to be effected at the Closing as contemplated by this Agreement is further subject to the satisfaction fulfillment (or waiver by the Company or, to the extent permitted by applicable Law, waiver in writing by the Company) at or prior to and as of the Effective Time of the following conditions: (a) (i) The representations and warranties of Parent and each Parent, Merger Sub 1 and Merger Sub 2 set forth in this Agreement (other than the representations and warranties set forth in Section 4.2(a5.2(a) (except for the second sentence thereof) and (b), Section 4.12(a5.3(a) and (c)(i) (solely with respect to Parent), Section 4.18 5.10(b), Section 5.16 and Section 5.21) shall be true and correctcorrect (disregarding all qualifications or limitations as to “material”, “materiality” or “Parent Material Adverse Effect”) at and as of the date of this Agreement and at and as of the Closing, Closing Date as if though 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), in each case, except for de minimis inaccuracies; (ii) the representations and warranties of Parent and each Merger Sub set forth in the first sentence of Section 4.1(a), Section 4.2(b), Section 4.3(a), Section 4.3(b) and Section 4.20 shall be true and correct in all material respects, at and as of the date of this Agreement and at and as of Closing, 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); (iii) the representations and warranties of Parent and each Merger Sub set forth in Article 4 that are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of Closing, 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); and (iv) the other representations and warranties of Parent and each Merger Sub set forth in Article 4 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 such time Closing Date (except to the extent such representations and warranties expressly made as of relate to an earlier date, in which case as of such earlier date), except with respect for inaccuracies of representations or warranties the circumstances giving rise to this clause (iv) where the failure of such representations and warranties to be so true and correct which would not have or would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Effect (b) Parent and each Merger Sub shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the Closing. (c) Since the date of this Agreement, there shall not have occurred any event, change, occurrence, effect or development that has had, or is reasonably likely to have, a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied. (e) The Company shall have received the opinion of Wachtell, Lipton, Xxxxx & Xxxx, or, if Wachtell, Lipton, Xxxxx & Xxxx is unable to provide such opinion, another nationally recognized Tax counsel reasonably satisfactory to the Company (“Company Tax Counsel”), dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, to the effect it being understood that, on for purposes of determining the basis of facts, representations and assumptions set forth or referred to in such opinion, (i) the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) the Mergers will not result in gain recognition pursuant to Section 367(a)(1) of the Code by Persons who are stockholders of the Company immediately prior to the First Effective Time (other than any such stockholder who would be a “five-percent transferee shareholder” (within the meaning of Treasury Regulations Section 1.367(a)-3(c)(5)(ii)) of Parent that does not enter into a five-year gain recognition agreement in the form provided in Treasury Regulations Section 1.367(a)-8(c) and comply with the requirements of that agreement and Treasury Regulations Section 1.367(a)-8 for avoiding the recognition of gain). In connection with rendering such opinion, Company Tax Counsel shall be entitled to receive and may rely on the Parent Tax Certificate and the Company Tax Certificate.accuracy

Conditions to Obligation of the Company to Effect the Mergers. The obligation of the Company to effect the Mergers and the other transactions to be effected at the Closing as contemplated by this Agreement is further subject to the satisfaction fulfillment (or waiver by the Company or, to the extent permitted by applicable Law, waiver in writing by the Company) at or prior to and as of the Effective Time of the following conditions: (a) (i) The representations and warranties of Parent and each Parent, Merger Sub 1 and Merger Sub 2 set forth in this Agreement (other than the representations and warranties set forth in Section 4.2(a5.2(a) (except for the second sentence thereof) and (b), Section 4.12(a5.3(a) and (c)(i) (solely with respect to Parent), Section 4.18 5.10(b), Section 5.16 and Section 5.21) shall be true and correctcorrect (disregarding all qualifications or limitations as to “material”, “materiality” or “Parent Material Adverse Effect”) at and as of the date of this Agreement and at and as of the Closing, Closing Date as if though 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), in each case, except for de minimis inaccuracies; (ii) the representations and warranties of Parent and each Merger Sub set forth in the first sentence of Section 4.1(a), Section 4.2(b), Section 4.3(a), Section 4.3(b) and Section 4.20 shall be true and correct in all material respects, at and as of the date of this Agreement and at and as of Closing, 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); (iii) the representations and warranties of Parent and each Merger Sub set forth in Article 4 that are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of Closing, 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); and (iv) the other representations and warranties of Parent and each Merger Sub set forth in Article 4 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 such time Closing Date (except to the extent such representations and warranties expressly made as of relate to an earlier date, in which case as of such earlier date), except with respect for inaccuracies of representations or warranties the circumstances giving rise to this clause (iv) where the failure of such representations and warranties to be so true and correct which would not have or would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, all materiality, “Parent Material Adverse Effect” and similar qualifiers set forth in such representations and warranties shall be disregarded); (ii) the representations and warranties of Parent, Merger Sub 1 and Merger Sub 2 set forth in Section 5.2(a) (except for the second sentence thereof) shall be true and correct except for De Minimis Inaccuracies at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the date of this Agreement and at 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); (iii) the representations and warranties of Parent, Merger Sub 1 and Merger Sub 2 set forth in Section 5.2(b) Section 5.3(a) and (c)(i) (solely with respect to Parent), Section 5.16 and Section 5.21 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 Date as though made at 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); and (iv) the representations and warranties of Parent, Merger Sub 1 and Merger Sub 2 set forth in Section 5.10(b) shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the date of this Agreement and at and as of the Closing Date. For purposes of this Agreement, “De Minimis Inaccuracies” means any inaccuracies that individually or in the aggregate are de minimis relative to the total fully diluted equity capitalization of the Company or Parent, as the case may be. (b) Parent and each Parent, Merger Sub 1 and Merger Sub 2 shall have performed in all material respects all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by them prior to the ClosingEffective Time. (c) Since From the date of this Agreement, there shall not have occurred and be continuing any event, change, occurrence, effect or development Effect that has had, had or is would reasonably likely be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or another senior officeran executive officer of Parent, certifying to the effect that the conditions set forth in Section 6.2(a7.2(a), Section 6.2(b7.2(b) and Section 6.2(c7.2(c) have been satisfied. (e) The Company shall have received the opinion of Wachtell, Lipton, Xxxxx & Xxxx, or, if Wachtell, Lipton, Xxxxx & Xxxx is unable delivered to provide such opinion, another nationally recognized Tax counsel reasonably satisfactory Parent at least four (4) days prior to the Company Closing Date a certificate (“Company Tax Counsel”), dated as of the Closing Date, in form and substance reasonably satisfactory to Parent and dated not more than thirty (30) days before the CompanyClosing Date) pursuant to Treasury Regulations Section 1.1445-2(c)(3), to stating that the effect thatCompany is not, on and has not been during the basis of facts, representations and assumptions set forth or referred to applicable period specified in such opinion, (i) the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a897(c) of the Code and Code, a U.S. real property holding corporation (ii) the Mergers will not result as defined in gain recognition pursuant to Section 367(a)(1897(c)(2) of the Code by Persons who are stockholders of Code), provided that if the Company immediately prior fails to deliver the First Effective Time (other than any such stockholder who would certificate required by this Section 7.2(e), Parent shall still be a “five-percent transferee shareholder” (within obligated to effect the meaning of Treasury Regulations Section 1.367(a)-3(c)(5)(ii)) of Parent that does not enter into a five-year gain recognition agreement in the form provided in Treasury Regulations Section 1.367(a)-8(c) and comply with the requirements of that agreement and Treasury Regulations Section 1.367(a)-8 for avoiding the recognition of gain). In connection with rendering such opinion, Company Tax Counsel Mergers but shall be entitled to receive deduct and may rely on withhold from any amounts otherwise payable to the Parent Tax Certificate holders of Company Warrants pursuant to Section 3.1(c) to the extent such deduction and the Company Tax Certificatewithholding is required by applicable Law.