Common use of Conditions to Obligations of the Parent and Buyer Clause in Contracts

Conditions to Obligations of the Parent and Buyer. The obligation of the Parent and the Buyer to consummate the purchase of the Purchased Assets is subject to the satisfaction (or waiver by the Buyer) of the following additional conditions: (a) The Parent shall have conducted and completed a thorough business, legal and financial due diligence investigation of the Company which shall be satisfactory in all material respects to the Parent (the “Due Diligence Investigation”); provided, that so long as the Stockholders shall furnish Parent and its representatives with all information concerning the Company as Parent may reasonably request, and shall permit Parent and its representatives with access to Company personnel, the Buyer shall complete such Due Diligence Investigation within sixty (60) days from the date of execution of this Agreement (the “Due Diligence Period”). Unless Parent shall notify the Stockholders on or before expiration of the Due Diligence Period that it intends to terminate this Agreement by reason of an unsatisfactory Due Diligence Investigation, such condition to the obligations of Parent and Buyer to consummate this Agreement shall be deemed to have been satisfied. (b) The representations and warranties of the Stockholders and the Company set forth in this Agreement (when read without regard to any qualification as to materiality or Company Material Adverse Effect contained therein) shall be true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date as though made as of the Closing Date (provided, however, that to the extent such representation and warranty expressly relates to an earlier date, such representation and warranty shall be true and correct as of such earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) The Stockholders and the Company shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing Date, except for such non-performance or non-compliance as does not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (d) The audit of the Annual Financial Statement of the Company shall reflect that the combined net sales revenues and Pre-Tax Profits of the Company and DiscCo (after all inter-company eliminations) for the 2014 Fiscal Year were not less than ninety (90%) of the estimated $53,800,000 of net sales revenues and estimated $10,000,000 of Pre-Tax Profits reflected on the unaudited Fiscal Year Financial Statements; (e) The Parent shall have received from one or more Investors not less than $35,000,000 of gross proceeds of the Required Financing on terms and conditions reasonably acceptable to the Parent and that comply with the provisions of this Agreement; (f) The Parent shall have obtained (and shall have provided copies thereof to the Company) the written consent or approval of the requisite holders of a majority of its voting capital stock, if and to the extent required by applicable Law or the rules of the Nasdaq Capital Markets, to the execution, delivery and performance by the Parent and Buyer of this Agreement and the other Transaction Documents to which Parent and Buyer is a party, in form and substance satisfactory to the Parent and Buyer; (g) The Company and DiscCo shall have complied with the provisions of Section 4.4(h) of this Agreement; (h) No Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (i) The Stockholders shall have delivered to the Parent, the Buyer and the Merger Subsidiary a certificate (the “Stockholders Certificate”) to the effect that (i) to the knowledge of the Stockholders, the representations and warranties of the Stockholders and the Company set forth in Article II of this Agreement are true and correct as at the Closing Date (provided, that to the extent such representation and warranty expressly relates to an earlier date, such representation and warranty shall be true and correct as of such earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; and (ii) each of the conditions, covenants and agreements required to be performed by the Stockholders and the Company under this Agreement have been performed or reasonably satisfied in all material respects; (j) The Buyer shall have received from Xxxxxxx Xxxxx LLP, counsel to Xxxxxxxx, as one of two Stockholders of the Company, and Xxxxx Miles XxXxxxx Xxxxxxx, LLP, counsel to Xxxxxxx as the other Stockholder of the Company, and the sole Stockholder of DiscCo, legal opinions addressed to the Parent and Buyer and dated as of the Closing Date, in language acceptable to counsel to Xxxxxxxx and counsel to Xxxxxxx, including general qualification language, as to (i) due incorporation of each of the Seller and DiscCo, (ii) authority of the Stockholders, the Seller, DiscCo and each Subsidiary of Seller to enter into and consummate the transactions contemplated by the Agreement and the Merger Agreement, (iii) ownership of the capital stock or other equity of Seller, DiscCo and each Subsidiary of Seller, and (iv) enforceability of this Agreement, the Merger Agreement and the other Transaction Documents; and (k) All conditions precedent to consummation of the transactions contemplated by the DiscCo Merger Agreement shall have been satisfied.

Conditions to Obligations of the Parent and Buyer. The obligation of the Parent and the Buyer to consummate the purchase of the Purchased Assets is subject to the satisfaction (or waiver by the Buyer) of the following additional conditions: (a) The Parent shall have conducted and completed a thorough business, legal and financial due diligence investigation of the Company which shall be satisfactory in all material respects to the Parent (the “Due Diligence Investigation”); provided, that so long as the Stockholders shall furnish Parent and its representatives with all information concerning the Company as Parent may reasonably request, and shall permit Parent and its representatives with access to Company personnel, the Buyer shall complete such Due Diligence Investigation within sixty (60) days from the date of execution of this Agreement (the “Due Diligence Period”). Unless Parent shall notify the Stockholders on or before expiration of the Due Diligence Period that it intends to terminate this Agreement by reason of an unsatisfactory Due Diligence Investigation, such condition to the obligations of Parent and Buyer to consummate this Agreement shall be deemed to have been satisfied. (b) The representations and warranties of the Stockholders and the Company set forth in this Agreement (when read without regard to any qualification as to materiality or Company Material Adverse Effect contained therein) shall be true and correct as of the date of this Agreement and shall be true and correct as of the Closing Date as though made as of the Closing Date (provided, however, that to the extent such representation and warranty expressly relates to an earlier date, such representation and warranty shall be true and correct as of such earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) The Stockholders and the Company shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing Date, except for such non-performance or non-compliance as does not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (d) The audit of the Annual Financial Statement of the Company shall reflect that the combined net sales revenues and Pre-Tax Profits of the Company and DiscCo (after all inter-company eliminations) for the 2014 Fiscal Year were not less than ninety (90%) of the estimated $53,800,000 of net sales revenues and estimated $10,000,000 of Pre-Tax Profits reflected on the unaudited Fiscal Year Financial Statements; (e) The Parent shall have received from one or more Investors not less than $35,000,000 of gross proceeds of the Required Financing on terms and conditions reasonably acceptable to the Parent and that comply with the provisions of this Agreement; (f) The Parent shall have obtained (and shall have provided copies thereof to the Company) the written consent or approval of the requisite holders of a majority of its voting capital stock, if and to the extent required by applicable Law or the rules of the Nasdaq Capital Markets, to the execution, delivery and performance by the Parent and Buyer of this Agreement and the other Transaction Documents to which Parent and Buyer is a party, in form and substance satisfactory to the Parent and Buyer; (g) The Company and DiscCo shall have complied with the provisions of Section 4.4(h) of this Agreement; (h) No Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (i) The Stockholders shall have delivered to the Parent, the Buyer and the Merger Subsidiary a certificate (the “Stockholders Certificate”) to the effect that (i) to the knowledge of the Stockholders, the representations and warranties of the Stockholders and the Company set forth in Article II of this Agreement are true and correct as at the Closing Date (provided, that to the extent such representation and warranty expressly relates to an earlier date, such representation and warranty shall be true and correct as of such earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; and (ii) each of the conditions, covenants and agreements required to be performed by the Stockholders and the Company under this Agreement have been performed or reasonably satisfied in all material respects; (j) The Buyer shall have received from Xxxxxxx Xxxxx LLPXxxxx, PLLC, counsel to Xxxxxxxx, as one of two Stockholders of the Company, Xxxxxxxx and Xxxxx Miles XxXxxxx Xxxxxxx, LLP, counsel to Xxxxxxx as Xxxxxxx, an opinion on the other Stockholder of the Companymatters set forth in Exhibit I attached hereto, and the sole Stockholder of DiscCo, legal opinions addressed to the Parent and Buyer and dated as of the Closing Date, in language acceptable to counsel to Xxxxxxxx and counsel to Xxxxxxx, including general qualification language, as to (i) due incorporation of each of the Seller and DiscCo, (ii) authority of the Stockholders, the Seller, DiscCo and each Subsidiary of Seller to enter into and consummate the transactions contemplated by the Agreement and the Merger Agreement, (iii) ownership of the capital stock or other equity of Seller, DiscCo and each Subsidiary of Seller, and (iv) enforceability of this Agreement, the Merger Agreement and the other Transaction Documents; and (k) All conditions precedent to consummation of the transactions contemplated by the DiscCo Merger Agreement shall have been satisfied.