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

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further subject to satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) On and after the date hereof, there shall not have occurred any change, condition, event or development that, individually or in the aggregate, has resulted in, or would reasonably be expected to result in, a Material Adverse Effect on the Company, including its business, assets or liabilities; (b) The representations and warranties of the Senior Management Stockholders, the Preferred Stockholders and the Company in this Agreement that are qualified by materiality shall be true and correct in all respects when made or at and as of the Effective Time (other than representations and warranties that speak as of a specific time or date (other than the date contained in the introduction to Article III hereof) which shall have been true as of the specified date), except in any case (other than the representations in Section 3.04) where such failure to be true and correct would not have, or reasonably be likely not to have, a Material Adverse Effect on the Company; (c) The representations and warranties of the Senior Management Stockholders, the Preferred Stockholders and the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects when made or at and as of the Effective Time (other than representations and warranties that speak as of a specific time or date which shall have been true as of the specified date), except in any case (other than the representations in Section 3.04) where such failure to be true and correct would not have, or reasonably be likely not to have, a Material Adverse Effect on the Company; (d) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement; (e) The Company shall have delivered to Parent and Sub a certificate of an officer of the Company to the effect that each of the conditions specified in Sections 8.02(a), (b), (c) and (d) is satisfied in all respects; (f) The Company shall have delivered to Parent and Sub a certificate executed by the Secretary of the Company dated as of the Closing Date, certifying that the attached thereto are true and complete copies of (i) the Company’s certificate of incorporation as in effect immediately preceding Closing, (ii) the Company’s bylaws as in effect immediately preceding Closing, (iii) the resolutions of the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and all other agreements and documents contemplated by this Agreement to which the Company is or will be a party and (iv) a certificate of good standing (or similar certificate) for the Company issued by the Secretary of State of the State of Delaware; (g) All assignments, authorizations, consents, waivers and approvals from parties to contracts, leases or other agreements to which the Company is a party, or by which it is bound, the failure to obtain which would prevent the consummation of the Merger or have, individually or in the aggregate, a Material Adverse Effect on the Company, shall have been obtained; (h) Parent shall have received a legal opinion letter delivered by Halleland Xxxxx Xxxxx & Xxxxxxx, P.A., counsel to the Company, substantially in the form set forth on Exhibit C; (i) Each agreement listed on Schedule 8.02(i) shall have been duly authorized and executed by each of the respective parties thereto in substantially the same form attached to such schedule; (j) Except for the Senior Management Stockholders, each holder of C-1 Preferred Stock shall have executed and delivered to Parent either an accredited or non-accredited stockholder representation letter, as applicable, in the form attached hereto as Exhibit D and Exhibit E, respectively, which letter, Parent’s counsel is satisfied, indicates that Parent Shares may be issued in accordance with federal and state securities laws; (k) The Senior Management Stockholders shall have executed and delivered to Parent the Escrow Agreement set forth as Exhibit F hereto (the “Escrow Agreement”); (l) The Holders (as defined in the Registration Rights Agreement) shall have executed and delivered to Parent the Registration Rights Agreement; (m) Parent shall have received all stock certificates and option agreements in respect of all Company Capital Stock held by each Preferred Stockholder, Senior Management Stockholder and holder of Series C-1 Preferred; and (n) The transactions contemplated by this Agreement shall have been consented to by MLBFS under the WCMA Agreement, and Parent shall have received written evidence of such consent.

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further shall be subject to the satisfaction or waiver (or, to the extent permitted by applicable law, waiver) at or prior to the Effective Time Closing Date of the following additional conditions: (a) On The Company shall have performed or complied with in all material respects its agreements and after covenants contained in this Agreement required to be performed or complied with at or prior to the date hereof, there Closing Date. Parent shall not have occurred any change, condition, event or development that, individually or in received a closing certificate signed on behalf of the aggregate, has resulted in, or would reasonably be expected Company by an authorized officer of the Company (the “Company Officer’s Certificate”) to result in, a Material Adverse Effect on the Company, including its business, assets or liabilities;such effect. (b) The representations and warranties of the Senior Management Stockholders, the Preferred Stockholders and the Company contained in this Agreement shall be true in all respects on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent in any case that are qualified by materiality such representations and warranties speak as of another date, in which case such representations and warranties shall be true as of that specific date); provided, however, that this condition shall be deemed to have been satisfied so long as any failure of such representations and warranties to be true and correct in all respects when made or at and as of the Effective Time (other than representations and warranties that speak as of a specific time or date (other than the date contained in the introduction to Article III hereof) which shall have been true as of the specified date)respects, except in any case (other than the representations in Section 3.04) where such failure to be true and correct would not have, or reasonably be likely not to have, a Material Adverse Effect on the Company; (c) The representations and warranties of the Senior Management Stockholders, the Preferred Stockholders and the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects when made or at and as of the Effective Time (other than representations and warranties that speak as of a specific time or date which shall have been true as of the specified date), except in any case (other than the representations in Section 3.04) where such failure to be true and correct would not have, or reasonably be likely not to have, a Material Adverse Effect on the Company; (d) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement; (e) The Company shall have delivered to Parent and Sub a certificate of an officer of the Company to the effect that each of the conditions specified in Sections 8.02(a), (b), (c) and (d) is satisfied in all respects; (f) The Company shall have delivered to Parent and Sub a certificate executed by the Secretary of the Company dated as of the Closing Date, certifying that the attached thereto are true and complete copies of (i) the Company’s certificate of incorporation as in effect immediately preceding Closing, (ii) the Company’s bylaws as in effect immediately preceding Closing, (iii) the resolutions of the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and all other agreements and documents contemplated by this Agreement to which the Company is or will be a party and (iv) a certificate of good standing (or similar certificate) for the Company issued by the Secretary of State of the State of Delaware; (g) All assignments, authorizations, consents, waivers and approvals from parties to contracts, leases or other agreements to which the Company is a party, or by which it is bound, the failure to obtain which would prevent the consummation of the Merger or havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, further, that for purposes of this Section only, a Company Material Adverse Effect shall be deemed to be triggered if any change, event or effect contemplated by the definition of Company Material Adverse Effect would, individually or in the aggregate, reasonably be expected to result in Damages equal to $10 million or more, excluding any change, event or effect relating to (i) any inaccuracy in or breach of any representation or warranty set forth in Section 3.25 or Section 3.26 hereof and (ii) any actual or threatened suit, action or proceeding by a third-party. Parent shall have received a Company Officer’s Certificate to such effect. (c) At any time on or after the date of this Agreement there shall not have occurred and be continuing a Company Material Adverse Effect. (d) The lender under the Financing Commitment Letter shall have consummated the Debt Financing on the terms and conditions set forth therein (without the waiver of any terms or provisions not consented to by Parent) or Parent shall have otherwise obtained an amount of financing not less than the amount contemplated by the Financing Commitment Letter; (e) As of the Closing, at least 75% of the workforce of the Company as of the date hereof (excluding employees who have been specifically excluded by the Purchaser in a writing delivered from the Purchaser to the Company prior to the date hereof but including those who have prior to the date hereof entered into amendments to their existing nondisclosure agreements with the Company, each of which contains a noncompetition provision) shall have been obtainedbe employed by the Company; (hf) If requested by Parent prior to the Closing, the Company shall have, effective as of the Closing, properly terminated the Company’s contracts with each of Marubeni Corporation and Hitrax Co; (g) Parent shall have received a legal opinion letter delivered by Halleland Xxxxx Xxxxx & Xxxxxxxthe following agreements and documents, P.A., counsel to the Company, substantially each of which shall be in the form set forth on Exhibit C;full force and effect: (i) Each agreement listed on Schedule 8.02(i) shall have been duly authorized and executed by each of the respective parties thereto in substantially the same form attached to such schedule; (j) Except for the Senior Management Stockholders, each holder of C-1 Preferred Stock shall have executed and delivered to Parent either an accredited or non-accredited stockholder representation letter, as applicable, in the form attached hereto as Exhibit D and Exhibit E, respectively, which letter, Parent’s counsel is satisfied, indicates that Parent Shares may be issued in accordance with federal and state securities laws; (k) The Senior Management Stockholders shall have executed and delivered to Parent the Escrow Agreement set forth as Exhibit F hereto (the “Escrow Agreement”); (l) The Holders (as defined in the Registration Rights Agreement) shall have executed and delivered to Parent the Registration Rights Agreement; (mii) written documentation reasonably satisfactory to Parent shall have received all stock certificates and option agreements in respect evidencing the Company’s discharge of all Company Capital Stock held by each Preferred Stockholder, Senior Management Stockholder and holder of Series C-1 PreferredIndebtedness for borrowed money pursuant to Section 6.10; and (nh) The There shall not be pending by any Governmental Body any suit, action or proceeding, (i) challenging or seeking to enjoin or prohibit the consummation of the Merger or seeking to obtain from Parent or any of its subsidiaries any material damages in connection with the transactions contemplated hereby, (ii) seeking to enjoin or prohibit the ownership or operation by the Company, Parent or any of their respective subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, to dispose of or hold separate any significant portion of the business or assets of the Company, Parent or any of their respective subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement shall have been consented to by MLBFS under the WCMA Agreement, and or (iii) seeking to enjoin or prohibit Parent shall have received written evidence or any of such consentits subsidiaries from controlling in any material respect the business or operations of the Company.

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further subject to satisfaction or waiver at or prior to the Effective Time of the following conditions:. (a) On and after the date hereof, there There shall not have occurred any change, condition, event or development that, individually or in the aggregate, that has resulted in, or would could reasonably be expected to result in, a Material Adverse Effect material adverse effect on the Company, including its business, assets or liabilities; (b) The representations and warranties of the Senior Management Stockholders, the Preferred Stockholders and the Company in this Agreement that are qualified by materiality shall be true and correct in all respects when made or at as of the date of this Agreement and as of the Effective Time (other than representations and warranties that speak as of a specific time or date (other than the date contained in the introduction to Article III hereof) which shall have been true as of the specified date), except in any case (other than the representations in Section 3.04) where such failure to be true and correct would not have, or reasonably be likely not to have, a Material Adverse Effect on the CompanyTime; (c) The representations and warranties of the Senior Management Stockholders, the Preferred Stockholders and the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects when made or at as of the date of this Agreement and as of the Effective Time (other than representations and warranties that speak as of a specific time or date which shall have been true as of the specified date)Time, except in any case (other than the representations in Section 3.04) where such failure to be true and correct would not havenot, in the aggregate, (x) have a material adverse effect on the Company or Parent, or reasonably be likely not to have, a Material Adverse Effect on (y) prevent or materially delay the Companyconsummation of the Merger; (d) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement; (e) The An officer of the Company shall have delivered to Parent and Sub a certificate of an officer of the Company to the effect that each of the conditions specified in Sections 8.02(a), (b7.02(b), (c) and (d) is satisfied in all respects; (f) The Company shall have delivered to Parent and Sub a certificate executed by the Secretary of the Company dated as of the Closing Date, certifying that the attached thereto are true and complete copies of (i) the Company’s certificate of incorporation as in effect immediately preceding Closing, (ii) the Company’s bylaws as in effect immediately preceding Closing, (iii) the resolutions of the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and all other agreements and documents contemplated by this Agreement to which the Company is or will be a party and (iv) a certificate of good standing (or similar certificate) for the Company issued by the Secretary of State of the State of Delaware; (g) All assignments, authorizations, consents, waivers and approvals from parties to contracts, leases contracts or other agreements to which any of the Company or the Subsidiaries is a party, or by which it any of them is bound, as may be required to be obtained by them in connection with the performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have, individually or in the aggregate, a Material Adverse Effect material adverse effect on the Company, shall have been obtained; (g) At the mailing date of the Proxy Statement and the date of the Stockholders Meeting, the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading; and (h) Parent shall have received a legal opinion letter delivered by Halleland Xxxxx Xxxxx an opinion, dated the Effective Time, of Shefxxx & XxxxxxxXroexxxx, P.A.Xxd., counsel to the Company, substantially in form and substance reasonably satisfactory to Parent, with respect to the form matters set forth on Exhibit C; in Sections 3.01, 3.02 and 3.03 (iincluding as to the Company Stockholder Approval) Each agreement listed on Schedule 8.02(i) shall have been duly authorized and executed by each of the respective parties thereto in substantially the same form attached to such schedule; (j) Except for the Senior Management Stockholders, each holder of C-1 Preferred Stock shall have executed and delivered to Parent either an accredited or non-accredited stockholder representation letter, as applicable, in the form attached hereto as Exhibit D and Exhibit E, respectively, which letter, Parent’s counsel is satisfied, indicates that Parent Shares may be issued in accordance with federal and state securities laws; (k) The Senior Management Stockholders shall have executed and delivered to Parent the Escrow Agreement set forth as Exhibit F hereto (the “Escrow Agreement”); (l) The Holders (as defined in the Registration Rights Agreement) shall have executed and delivered to Parent the Registration Rights Agreement; (m) Parent shall have received all stock certificates and option agreements in respect of all Company Capital Stock held by each Preferred Stockholder, Senior Management Stockholder and holder of Series C-1 Preferred; and (n) The transactions contemplated by this Agreement shall have been consented to by MLBFS under the WCMA Agreement, and Parent shall have received written evidence of such consenthereof.

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Acquisition Sub to effect the Merger are further subject to the satisfaction or (to the extent permitted by Law) waiver by Parent at or prior to the Effective Time of the following additional conditions: (a) On and after each of the date hereof, there shall not have occurred any change, condition, event or development that, individually or in the aggregate, has resulted in, or would reasonably be expected to result in, a Material Adverse Effect on the Company, including its business, assets or liabilities; (b) The representations and warranties of the Senior Management Stockholders, the Preferred Stockholders and the Company (i) contained in this Agreement that are qualified by materiality Section 4.9(b) shall be true and correct in all respects when made or at as of the date of this Agreement and as of the Effective Time Closing Date as though made on and as of such date (other than except to the extent such representations and warranties that speak are expressly made as of a specific time or date, in which case such representations and warranties shall be so true and correct as of such specific date only), (other than the date ii) contained in the introduction to Article III hereof) which shall have been true as last sentence of the specified dateSection 4.1, Section 4.2(a), except in Section 4.2(b), Section 4.3(a), Section 4.3(b), Section 4.19, Section 4.20 and Section 4.21, without giving effect to any case (other than the representations in Section 3.04) where such failure to be true and correct would not have, materiality or reasonably be likely not to have, a “Company Material Adverse Effect on the Company; (c) The representations and warranties of the Senior Management StockholdersEffect” qualifications therein, the Preferred Stockholders and the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects when made or at as of the date of this Agreement and as of the Effective Time Closing Date as though made on and as of such date (other than except to the extent such representations and warranties that speak are expressly made as of a specific time or date date, in which case such representations and warranties shall have been be so true and correct as of the specified date), except such specific date only) and (iii) contained in any case this Agreement (other than the representations and warranties listed in Section 3.04clauses (i) where and (ii) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of such failure date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date only), except for such failures to be true and correct as would not have, or reasonably be likely not to have, a Material Adverse Effect on the Company; (d) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement; (e) The Company shall have delivered to Parent and Sub a certificate of an officer of the Company to the effect that each of the conditions specified in Sections 8.02(a), (b), (c) and (d) is satisfied in all respects; (f) The Company shall have delivered to Parent and Sub a certificate executed by the Secretary of the Company dated as of the Closing Date, certifying that the attached thereto are true and complete copies of (i) the Company’s certificate of incorporation as in effect immediately preceding Closing, (ii) the Company’s bylaws as in effect immediately preceding Closing, (iii) the resolutions of the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and all other agreements and documents contemplated by this Agreement to which the Company is or will be a party and (iv) a certificate of good standing (or similar certificate) for the Company issued by the Secretary of State of the State of Delaware; (g) All assignments, authorizations, consents, waivers and approvals from parties to contracts, leases or other agreements to which the Company is a party, or by which it is bound, the failure to obtain which would prevent the consummation of the Merger or have, individually or in the aggregate, a Company Material Adverse Effect on Effect; provided, that solely for purposes of clause (ii) above, if one or more inaccuracies in Section 4.2(a) would cause the Companyaggregate amount required to be paid by Parent or Acquisition Sub in connection with the Closing to increase by $2,000,000 or more, such inaccuracy or inaccuracies shall have been obtainedbe considered material for purposes of clause (ii) of this Section 7.2(a); (hb) the Company shall have performed or complied in all material respects with its obligations required under this Agreement to be performed or complied with on or prior to the Closing Date; (c) Parent shall have received a legal opinion letter delivered certificate signed by Halleland Xxxxx Xxxxx & Xxxxxxx, P.A., counsel an executive officer of the Company certifying as to the Company, substantially in the form matters set forth on Exhibit C; (iin Section 7.2(a) Each agreement listed on Schedule 8.02(i) shall have been duly authorized and executed by each of the respective parties thereto in substantially the same form attached to such schedule; (j) Except for the Senior Management Stockholders, each holder of C-1 Preferred Stock shall have executed and delivered to Parent either an accredited or non-accredited stockholder representation letter, as applicable, in the form attached hereto as Exhibit D and Exhibit E, respectively, which letter, Parent’s counsel is satisfied, indicates that Parent Shares may be issued in accordance with federal and state securities laws; (k) The Senior Management Stockholders shall have executed and delivered to Parent the Escrow Agreement set forth as Exhibit F hereto (the “Escrow Agreement”Section 7.2(b); (l) The Holders (as defined in the Registration Rights Agreement) shall have executed and delivered to Parent the Registration Rights Agreement; (m) Parent shall have received all stock certificates and option agreements in respect of all Company Capital Stock held by each Preferred Stockholder, Senior Management Stockholder and holder of Series C-1 Preferred; and (nd) The transactions contemplated by since the date of this Agreement shall have been consented to by MLBFS under the WCMA Agreement, there shall not have occurred and Parent shall have received written evidence of such consentbe continuing any Company Material Adverse Effect.