Common use of CONDITIONS TO OBLIGATIONS OF NEWCO Clause in Contracts

CONDITIONS TO OBLIGATIONS OF NEWCO. The obligations of Newco to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) The representations and warranties of the Company in this Agreement that are qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date); provided that this paragraph (a) shall be deemed satisfied so long as the failure of all such representations and warranties to be so true and correct would not have or would not reasonably be likely to have a Material Adverse Effect; and Newco shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. (b) The Company shall have performed in all material respects the material obligations required to be performed by it under this Agreement at or prior to the Closing Date; and Newco shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 46 (c) Newco shall have received evidence, in form and substance reasonably satisfactory to it, that such consents, approvals, authorizations, permits, actions, filings or notifications of, with or to all Governmental Entities as specified in Section 3.5(b) have been obtained, except where the failure to obtain such consents, approvals, authorizations, permits, actions, filings or notifications would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect. (d) There shall not be pending any suit, action or proceeding by any U.S. federal Governmental Entity (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the transactions contemplated by this Agreement or, in connection therewith, seeking to obtain from Newco or any of its affiliates any damages that are material to the Company and its Subsidiaries, taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by Newco of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (iii) seeking to impose limitations on the ability of Newco to acquire or hold, or exercise full rights of ownership of, any shares of the Company Common Stock, including the right to vote the Company Common Stock on all matters properly presented to the stockholders of the Company, except in each case for clauses (i), (ii) or (iii) where any such suit, action or proceeding would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect. (e) Newco shall have received the agreements referred to in Section 6.12. (f) The number of Dissenting Shares (other than any Dissenting Shares owned by Trinity I Fund, L.P., TF Investors, L.P., Trinity Capital Management, Inc., Thomas M. Taylor, Portfolio H Investors, L.P., Portfolio Xxxxxxxxxx, Xxx. or any of their affiliates or any other person or group holding 3% or more of the issued and outstanding shares of Company Common Stock) shall not exceed 5% of the issued and outstanding shares of Company Common Stock. (g) The Company shall have received the financing proceeds under the Debt Financings on the terms and conditions set forth in the Bank Commitment Letters or upon terms and conditions which are substantially equivalent thereto, and to the extent that any of the terms and conditions are not as so set forth or substantially equivalent, on terms and conditions reasonably satisfactory to Newco; provided that Newco shall have complied with the provisions of Section 6.8. 47 (h) Newco shall be reasonably satisfied that the Merger shall be recorded as a recapitalization for financial reporting purposes.

CONDITIONS TO OBLIGATIONS OF NEWCO. The obligations of Newco to effect the Merger shall be are further subject to the satisfaction following conditions, any or waiver at all of which may be waived in whole or prior in part by Newco, to the Effective Time of the following conditionsextent permitted by applicable Law: (a) The the representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects (provided that any representation or warranty of the Company contained herein that is subject to a materiality, Material Adverse Effect or similar qualification shall not be so qualified for purposes of determining the existence of any breach thereof on the part of the Company) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date); provided that this paragraph (a) shall be deemed satisfied so long as the failure of all such representations and warranties to be so true and correct would not have or would not reasonably be likely to have a Material Adverse Effect; Closing Date and Newco shall have received a certificate signed on behalf of the Company by an the chief executive officer and the chief financial officer of the Company to such effect.the effect set forth in this paragraph; (b) The the Company shall have performed in all material respects the material obligations required to be performed by it under this Agreement at or prior to the Closing Date; Date except for such failures to perform as have not had or could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect on the Surviving Corporation (provided that any obligation the performance of which is subject to a materiality, Material Adverse Effect or similar qualification shall not be so qualified for purposes of determining the existence of any nonperformance thereof) and Newco shall have received a certificate signed on behalf of the Company by an the chief executive officer and the chief financial officer of the Company to such effect. 46the effect set forth in this paragraph; and (c) Newco shall have received evidenceobtained the Financing substantially on the terms contemplated by the Financing Commitments or alternative financing on terms no less favorable in any material respect than those set forth in the Financing Commitments, in form and substance reasonably satisfactory to it, that such consents, approvals, authorizations, permits, actions, filings or notifications of, with or to all Governmental Entities as specified in Section 3.5(b) have been obtained, except where unless the failure to obtain such consents, approvals, authorizations, permits, actions, filings or notifications would not have or would not reasonably be likely to have, individually or in the aggregate, Financing was the result of a Material Adverse Effect. (d) There shall not be pending any suit, action or proceeding by any U.S. federal Governmental Entity (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the transactions contemplated by this Agreement or, in connection therewith, seeking to obtain from Newco or any of its affiliates any damages that are material to the Company and its Subsidiaries, taken as a whole, (ii) seeking to prohibit or limit the ownership or operation failure by Newco to perform any covenant or condition contained therein or herein or the inaccuracy of any material portion representation or warranty of the business or assets of the Company and its Subsidiaries, taken as a whole, or (iii) seeking to impose limitations on the ability of Newco to acquire or hold, or exercise full rights of ownership of, any shares of the Company Common Stock, including the right to vote the Company Common Stock on all matters properly presented to the stockholders of the Company, except in each case for clauses (i), (ii) or (iii) where any such suit, action or proceeding would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse EffectNewco. (e) Newco shall have received the agreements referred to in Section 6.12. (f) The number of Dissenting Shares (other than any Dissenting Shares owned by Trinity I Fund, L.P., TF Investors, L.P., Trinity Capital Management, Inc., Thomas M. Taylor, Portfolio H Investors, L.P., Portfolio Xxxxxxxxxx, Xxx. or any of their affiliates or any other person or group holding 3% or more of the issued and outstanding shares of Company Common Stock) shall not exceed 5% of the issued and outstanding shares of Company Common Stock. (g) The Company shall have received the financing proceeds under the Debt Financings on the terms and conditions set forth in the Bank Commitment Letters or upon terms and conditions which are substantially equivalent thereto, and to the extent that any of the terms and conditions are not as so set forth or substantially equivalent, on terms and conditions reasonably satisfactory to Newco; provided that Newco shall have complied with the provisions of Section 6.8. 47 (h) Newco shall be reasonably satisfied that the Merger shall be recorded as a recapitalization for financial reporting purposes.

CONDITIONS TO OBLIGATIONS OF NEWCO. The obligations of Newco to effect consummate the Merger shall transactions contemplated by this Agreement will be further subject to the satisfaction or waiver fulfillment at or prior to the Effective Time Closing of the following additional conditions: (a) The representations and warranties of the Company and in this Agreement that are qualified as all certificates or other documents delivered by the Company to materiality shall be true and correct and those not so qualified shall Newco will be true and correct in all material respects on the date of this Agreement and (except as to representations that specify a particular time, which will be true and correct as of such time) on the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, were made on and or as of such earlier that date); provided that this paragraph (a) shall be deemed satisfied so long as the failure of all such representations and warranties to be so true and correct would not have or would not reasonably be likely to have a Material Adverse Effect; and Newco shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. (b) The Company shall will have performed and complied in all material respects the material obligations with all agreements, obligations, covenants and conditions required by this Agreement to be performed or complied with by it under this Agreement at them on or prior to the Closing Date; Closing. (i) All consents required hereunder to consummate the transactions contemplated hereby and to allow Newco shall have received a certificate signed on behalf to transact the business of the Company following the Effective Time will have been obtained (and Newco will have received copies thereof); (ii) such consents will be in effect and no proceeding will have been initiated or threatened with respect thereto; all applicable waiting periods with respect to such consents will have expired; (iii) all conditions and requirements prescribed by an executive officer applicable law or by such consents will have been satisfied; and (iv) any consents required hereunder to consummate the transactions contemplated hereby and to allow Newco to transact the business of the Company to such effect. 46 (c) Newco shall have received evidence, in form and substance reasonably satisfactory to it, following the Effective Time do not impose regulatory conditions that such consents, approvals, authorizations, permits, actions, filings or notifications of, with or to all Governmental Entities as specified in Section 3.5(b) have been obtained, except where the failure to obtain such consents, approvals, authorizations, permits, actions, filings or notifications would not have or would not reasonably be likely to have, individually or cause a material adverse change in the aggregate, a Material Adverse Effectfinancial condition or operations of Newco. (d) There shall not The form and substance of all legal matters contemplated hereby and all papers delivered hereunder will be pending any suitreasonably acceptable to Xxxxxxxxx & Xxxxxx PLLP, action or proceeding by any U.S. federal Governmental Entity (i) challenging or seeking counsel to restrain or prohibit the consummation of the Merger or any of the transactions contemplated by this Agreement or, in connection therewith, seeking to obtain from Newco or any of its affiliates any damages that are material to the Company and its Subsidiaries, taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by Newco of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (iii) seeking to impose limitations on the ability of Newco to acquire or hold, or exercise full rights of ownership of, any shares of the Company Common Stock, including the right to vote the Company Common Stock on all matters properly presented to the stockholders of the Company, except in each case for clauses (i), (ii) or (iii) where any such suit, action or proceeding would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse EffectNewco. (e) Newco shall The Company will have received furnished such certificates of its respective officers to evidence compliance with the agreements referred conditions in Sections 6.1 and 6.2 to in Section 6.12be satisfied by the Company. (f) The number of Dissenting Shares (other than any Dissenting Shares owned by Trinity I Fund, L.P., TF Investors, L.P., Trinity Capital Management, Inc., Thomas M. Taylor, Portfolio H Investors, L.P., Portfolio Xxxxxxxxxx, Xxx. or any of their affiliates or any other person or group holding 3% or more of the issued and outstanding shares of Company Common Stock) shall not exceed 5% of the issued and outstanding shares of Company Common Stock. (g) The Company shall have received the financing proceeds under the Debt Financings on the terms and conditions set forth in the Bank Commitment Letters or upon terms and conditions which are substantially equivalent thereto, and to the extent that any of the terms and conditions are not as so set forth or substantially equivalent, on terms and conditions reasonably satisfactory to Newco; provided that Newco shall have complied with obtained the provisions of Section 6.8. 47 (h) Newco shall be reasonably satisfied that financing referred to in the Merger shall be recorded as a recapitalization for financial reporting purposesCommitment Letter.

CONDITIONS TO OBLIGATIONS OF NEWCO. (a) The obligations obligation of Newco NewCo to effect consummate the Merger shall transactions to be further performed by it in connection with the Closing is subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (ai) The representations no court of competent jurisdiction in the United States or any other Governmental Entity, based otherwise than on any applicable antitrust Law, (A) shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement or the Master Transactions Agreement, which Order or other action shall have become final and warranties non appealable or (B) shall have failed to issue an Order or to take any other action necessary to fulfill the conditions to the Closing, and which denial of a request to issue such Order or take such other action shall have become final and non-appealable; (ii) all applicable waiting periods (and any extensions thereof) under the Xxxx Xxxxx Xxxxxx Act shall have expired or otherwise been terminated; (iii) the Parties shall have received (A) all material authorizations, consents and approvals and (B) all material licenses, registrations, certifications and accreditations, in the case of each of clauses (A) and (B), of Governmental Entities and other third parties (other than lenders under financing agreements) required in order to consummate the transactions contemplated by this Agreement and the Master Transactions Agreement or necessary for the lawful conduct of the Business by NewCo upon consummation of the transactions contemplated hereby; (iv) the Merger Agreement shall not have been terminated; (v) the Master Transactions Agreement shall not have been terminated; (vi) NewCo shall have received all of the other Documents required by Section 4.2 to be delivered to NewCo; and (vii) all actions to be taken by the Company in this Agreement that are qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date); provided that this paragraph (a) shall be deemed satisfied so long as the failure of all such representations and warranties to be so true and correct would not have or would not reasonably be likely to have a Material Adverse Effect; and Newco shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. (b) The Company shall have performed in all material respects the material obligations required to be performed by it under this Agreement at or prior to the Closing Date; and Newco shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 46 (c) Newco shall have received evidence, in form and substance reasonably satisfactory to it, that such consents, approvals, authorizations, permits, actions, filings or notifications of, connection with or to all Governmental Entities as specified in Section 3.5(b) have been obtained, except where the failure to obtain such consents, approvals, authorizations, permits, actions, filings or notifications would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect. (d) There shall not be pending any suit, action or proceeding by any U.S. federal Governmental Entity (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the transactions contemplated by this Agreement orand the Master Transactions Agreement, and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated by this Agreement and the Master Transactions Agreement, shall have been reasonably satisfactory in connection therewith, seeking form and substance to obtain from Newco or any of its affiliates any damages that are material to the Company and its Subsidiaries, taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by Newco of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (iii) seeking to impose limitations on the ability of Newco to acquire or hold, or exercise full rights of ownership of, any shares of the Company Common Stock, including the right to vote the Company Common Stock on all matters properly presented to the stockholders of the Company, except in each case for clauses (i), (ii) or (iii) where any such suit, action or proceeding would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse EffectNewCo. (eb) Newco shall have received the agreements referred to NewCo may waive any condition specified in this Section 6.128.1. (f) The number of Dissenting Shares (other than any Dissenting Shares owned by Trinity I Fund, L.P., TF Investors, L.P., Trinity Capital Management, Inc., Thomas M. Taylor, Portfolio H Investors, L.P., Portfolio Xxxxxxxxxx, Xxx. or any of their affiliates or any other person or group holding 3% or more of the issued and outstanding shares of Company Common Stock) shall not exceed 5% of the issued and outstanding shares of Company Common Stock. (g) The Company shall have received the financing proceeds under the Debt Financings on the terms and conditions set forth in the Bank Commitment Letters or upon terms and conditions which are substantially equivalent thereto, and to the extent that any of the terms and conditions are not as so set forth or substantially equivalent, on terms and conditions reasonably satisfactory to Newco; provided that Newco shall have complied with the provisions of Section 6.8. 47 (h) Newco shall be reasonably satisfied that the Merger shall be recorded as a recapitalization for financial reporting purposes.

CONDITIONS TO OBLIGATIONS OF NEWCO. The obligations of Newco to effect the Merger shall be further perform under this Agreement are subject to the satisfaction or waiver at by Newco of each of the following conditions on or prior to the Effective Time of the following conditionsClosing Date: (a) The concurrently with the Closing hereunder, the Transactions shall have been consummated; (b) there shall not exist on the Closing Date any injunction or other order, or statute, rule or regulation, of any Governmental Authority preventing or the prohibiting the consummation of the sale and purchase of the Securities hereunder; (c) there shall have been received all necessary approvals from state insurance regulators with respect to the sale and purchase of the Securities; (d) the representations and warranties of the Company Purchaser set forth in this Agreement that are qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date, Date (except to the extent any such representations and warranties expressly relate to representation or warranty speaks as of an earlier date (date, in which case such representations and warranties qualified as to materiality shall be true and correct, correct and those not so qualified shall be true and correct in all material respects, respects on and as of such earlier date); provided that this paragraph (a) shall be deemed satisfied so long as the failure of all such representations and warranties to be so true and correct would not have or would not reasonably be likely to have a Material Adverse Effect; and Newco shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect., (be) The Company the Purchaser shall have performed in all material respects the material all obligations required to be performed by it under this Agreement at or prior to the Closing Date; and Newco shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 46 (c) Newco shall have received evidence, in form and substance reasonably satisfactory to it, that such consents, approvals, authorizations, permits, actions, filings or notifications of, with or to all Governmental Entities as specified in Section 3.5(b) have been obtained, except where the failure to obtain such consents, approvals, authorizations, permits, actions, filings or notifications would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect. (d) There shall not be pending any suit, action or proceeding by any U.S. federal Governmental Entity (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the transactions contemplated by this Agreement or, in connection therewith, seeking to obtain from Newco or any of its affiliates any damages that are material to the Company and its Subsidiaries, taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by Newco of any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or (iii) seeking to impose limitations on the ability of Newco to acquire or hold, or exercise full rights of ownership of, any shares of the Company Common Stock, including the right to vote the Company Common Stock on all matters properly presented to the stockholders of the Company, except in each case for clauses (i), (ii) or (iii) where any such suit, action or proceeding would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect. (e) Newco shall have received the agreements referred to in Section 6.12.and (f) The number the Purchaser shall have delivered to Newco on the Closing Date, prior to the sale and purchase of Dissenting Shares the Securities hereunder, an officer's certificate as to the satisfaction, to such officer's knowledge, of all of the conditions to Newco's obligations hereunder (other than any Dissenting Shares owned by Trinity I Fundas to matters that have been waived by, L.P.or are within the knowledge or control of, TF Investors, L.P., Trinity Capital Management, Inc., Thomas M. Taylor, Portfolio H Investors, L.P., Portfolio Xxxxxxxxxx, Xxx. or any of their affiliates or any other person or group holding 3% or more of the issued and outstanding shares of Company Common Stock) shall not exceed 5% of the issued and outstanding shares of Company Common StockNewco). (g) The Company shall have received the financing proceeds under the Debt Financings on the terms and conditions set forth in the Bank Commitment Letters or upon terms and conditions which are substantially equivalent thereto, and to the extent that any of the terms and conditions are not as so set forth or substantially equivalent, on terms and conditions reasonably satisfactory to Newco; provided that Newco shall have complied with the provisions of Section 6.8. 47 (h) Newco shall be reasonably satisfied that the Merger shall be recorded as a recapitalization for financial reporting purposes.