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

Conditions to Obligations of the Parent and the Merger Sub. The obligations of the Parent and the Merger Sub to effect the Merger are also subject to the satisfaction or waiver (where permissible pursuant to Applicable Laws) by the Parent and the Merger Sub on or prior to the Closing Date of the following conditions: (a) the representations and warranties of the Company set forth in Article 3 of this Agreement shall be true and correct in all respects (without giving effect to any limitation indicated by the words “Company Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) when made and as of immediately prior to the Effective Time, as if made at and as of such time (except those representations and warranties that address matters only as of a particular date, which shall be true and correct in all respects as of that date), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (b) the Company shall have performed in all material respects all obligations, and complied in all material respects with the agreements and covenants, in this Agreement required to be performed by or complied with by it at or prior to the Closing; (c) since the date of this Agreement, there shall not have been any Company Material Adverse Effect or any event, change, or effect that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (d) the Parent will have received a certificate, signed by the chief executive officer or chief financial officer of the Company, certifying as to the matters set forth in Section 6.2(a), Section 6.2(b), and Section 6.2(c) hereof; (e) the Parent and the Stockholders’ Representative shall have entered into the Company Escrow Agreement and the Company Escrow Agreement shall be in full force and effect and shall not have been anticipatorily breached or repudiated; (f) the Parent and each of the Principal Stockholders shall have entered into the Company Escrow Agreement and the Company Escrow Agreement shall be in full force and effect and shall not have been anticipatorily breached or repudiated; (g) each issued and outstanding share of the Original Company Preferred Stock shall have been converted into shares of the Company Common Stock and Company Preferred Stock in accordance with the Seventh Amended and Restated Articles of Incorporation, and each holder thereof shall have waived prior notice of the consummation of the Merger; (h) prior to the Effective Time, all of the convertible securities of the Company shall have been converted into shares of the Company Common Stock and Company Preferred Stock or shall have been otherwise cancelled and terminated and they shall be of no force or effect; (i) prior to the Effective Time, all of the Company Stock Options and the Company Warrants shall have been exercised or shall have been otherwise cancelled and terminated and they shall be of no force or effect; (j) an officer of the Company shall certify the Final Conversion Schedule and deliver such schedule to the Parent; (k) if applicable and requested by Parent, the Company shall have terminated the 401(k) Plan effective at least one day prior to the Closing Date and all contributions payable to the 401(k) Plan shall have been made. The Company shall have provided the Parent: (i) executed resolutions of the Company Board authorizing the termination; and (ii) an executed amendment to the 401(k) Plan sufficient to ensure compliance with all applicable requirements of the Code and regulations thereunder so that the tax-qualified status of the 401(k) Plan will be maintained at the time of termination; (l) the Company’s total non-current liabilities (including, without limitation, any debt of any nature), as determined in accordance with GAAP, shall not exceed $50,000 as of the Closing; excluding $358,932 in building lease obligations through the full term of the lease and $64,567 in non-current obligations to Eventide for ionizer financing; (m) before the Closing, all shareholders loans (including all accrued interest thereon) made to the Company will be forgiven or converted into shares of the Company Common Stock; (n) the Company having a Working Capital Ratio of no less than 1.0 (as calculated in accordance with Exhibit B) on the Closing; (o) the Company shall have amended the Xxxx Agreement in accordance with Section 5.21; (p) the Parent shall have been furnished evidence satisfactory to it that all rights granted by the Company to its stockholders and in effect prior to the Closing, including, but not limited to, rights of co-sale, voting, registration, first refusal, first offer, preemption, observation or information or operational covenants, shall have terminated prior to the Closing Date; (q) the Parent shall have received a mutually agreeable opinion of Xxxxxx Xxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Company, or another counsel reasonably satisfactory to the Parent; (r) none of the Celebrity Endorsement Agreements will have been terminated on or before the Closing; and (s) before the Closing, the Parent shall have received executed copies of the Xxxx Escrow Agreement, the Emerald Escrow Agreement and the Creditor Escrow Agreement, and each such agreement shall be in full force and effect and not have been anticipatorily breached or repudiated.

Conditions to Obligations of the Parent and the Merger Sub. The obligations of the Parent and the Merger Sub to effect consummate the Merger are also transactions contemplated by this Agreement shall be subject to the satisfaction fulfillment or waiver (where permissible pursuant to Applicable Laws) by the Parent and the Merger Sub on Parent’s waiver, at or prior to the Closing Date Closing, of each of the following conditions: (a) the The representations and warranties of the Company set forth and/or the Stockholders contained in Article 3 of this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (without giving effect to in the case of any limitation indicated representation or warranty qualified by the words “materiality or Company Material Adverse Effect,” “) or in all material respects,” “respects (in the case of any material respect,” “material,” representation or “materially”warranty not qualified by materiality or Company Material Adverse Effect) when made on and as of immediately prior to the Effective Time, date hereof and on and as if of the Closing Date with the same effect as though made at and as of such time date (except those representations and warranties that address matters only as of a particular specified date, the accuracy of which shall be true and correct in all respects determined as of that datespecified date in all respects), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;. (b) The Company and the Company Stockholders shall have duly performed in all material respects all obligations, and complied in all material respects with the agreements and all agreements, covenants, in and conditions required by this Agreement required to be performed by or complied with by it them prior to or on the Closing Date; provided, that, with respect to agreements, covenants, and conditions that are qualified by materiality, the Company and the Stockholders shall have performed such agreements, covenants, and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against the Parent, the Merger Sub, the Company, or any Stockholder that would prevent the Closing. No Governmental Authority shall have enacted, issued, promulgated, enforced, or entered any Governmental Order that is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions, or causing any of the transactions contemplated hereunder to be rescinded following completion thereof. (d) All approvals, consents, and waivers that are required to be listed on Section 3.04 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to the Parent at or prior to the Closing;. (ce) since From the date of this Agreement, there shall not have been occurred any Company Material Adverse Effect Effect, nor shall any event or any event, change, or effect that wouldevents have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to have result in a Company Material Adverse Effect;. (df) the Parent will The Company shall have received a certificate, signed by the chief executive officer or chief financial officer delivered each of the Company, certifying as to the matters closing deliverables set forth in Section 6.2(a2.03(a), Section 6.2(b), and Section 6.2(c) hereof; (e) the Parent and the Stockholders’ Representative shall have entered into the Company Escrow Agreement and the Company Escrow Agreement shall be in full force and effect and shall not have been anticipatorily breached or repudiated; (f) the Parent and each of the Principal Stockholders shall have entered into the Company Escrow Agreement and the Company Escrow Agreement shall be in full force and effect and shall not have been anticipatorily breached or repudiated; (g) each issued and outstanding share of the Original Company Preferred Stock shall have been converted into shares of the Company Common Stock and Company Preferred Stock in accordance with the Seventh Amended and Restated Articles of Incorporation, and each holder thereof shall have waived prior notice of the consummation of the Merger; (h) prior to the Effective Time, all of the convertible securities of the Company shall have been converted into shares of the Company Common Stock and Company Preferred Stock or shall have been otherwise cancelled and terminated and they shall be of no force or effect; (i) prior to the Effective Time, all of the Company Stock Options and the Company Warrants shall have been exercised or shall have been otherwise cancelled and terminated and they shall be of no force or effect; (j) an officer of the Company shall certify the Final Conversion Schedule and deliver such schedule to the Parent; (k) if applicable and requested by Parent, the Company shall have terminated the 401(k) Plan effective at least one day prior to the Closing Date and all contributions payable to the 401(k) Plan shall have been made. The Company shall have provided the Parent: (i) executed resolutions of the Company Board authorizing the termination; and (ii) an executed amendment to the 401(k) Plan sufficient to ensure compliance with all applicable requirements of the Code and regulations thereunder so that the tax-qualified status of the 401(k) Plan will be maintained at the time of termination; (l) the Company’s total non-current liabilities (including, without limitation, any debt of any nature), as determined in accordance with GAAP, shall not exceed $50,000 as of the Closing; excluding $358,932 in building lease obligations through the full term of the lease and $64,567 in non-current obligations to Eventide for ionizer financing; (m) before the Closing, all shareholders loans (including all accrued interest thereon) made to the Company will be forgiven or converted into shares of the Company Common Stock; (n) the Company having a Working Capital Ratio of no less than 1.0 (as calculated in accordance with Exhibit B) on the Closing; (o) the Company shall have amended the Xxxx Agreement in accordance with Section 5.21; (p) the Parent shall have been furnished evidence satisfactory to it that all rights granted by the Company to its stockholders and in effect prior to the Closing, including, but not limited to, rights of co-sale, voting, registration, first refusal, first offer, preemption, observation or information or operational covenants, shall have terminated prior to the Closing Date; (q) the Parent shall have received a mutually agreeable opinion of Xxxxxx Xxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Company, or another counsel reasonably satisfactory to the Parent; (r) none of the Celebrity Endorsement Agreements will have been terminated on or before the Closing; and (s) before the Closing, the Parent shall have received executed copies of the Xxxx Escrow Agreement, the Emerald Escrow Agreement and the Creditor Escrow Agreement, and each such agreement shall be in full force and effect and not have been anticipatorily breached or repudiated.

Conditions to Obligations of the Parent and the Merger Sub. The obligations obligation of each of the Parent and the Merger Sub to effect consummate the Merger are also is subject to the satisfaction or waiver (where permissible pursuant to Applicable Laws) by the Parent and the Merger Sub on or prior to the Closing Date of the following additional conditions, unless any such condition is waived, in writing, by the Parent: (a) this Agreement and the Merger shall have been approved and adopted by the Company Stockholders; (b) the Company shall have obtained all of the waivers, permits, consents, assignments, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in the Company Disclosure Letter, except for any which if not obtained or effected would not have a Material Adverse Effect on the Company or on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of the Company set forth in Article 3 of this Agreement shall be true and correct in all material respects (without giving effect to any limitation indicated by the words “Company Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) when made and as of immediately prior to the Effective TimeClosing Date, as if made at and as of such time (except those for representations and warranties that address matters only made as of a particular specified date, which shall be true and correct in all material respects as of that such date), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (bd) the Company shall have performed or complied with, in all material respects all obligationsrespects, and complied its covenants set forth in all material respects with the agreements and covenants, in this Agreement Article V required to be performed by or complied with by it at or under this Agreement prior to the Closing; (c) since the date of this Agreement, there shall not have been any Company Material Adverse Effect or any event, change, or effect that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (d) the Parent will have received a certificate, signed by the chief executive officer or chief financial officer of the Company, certifying as to the matters set forth in Section 6.2(a), Section 6.2(b), and Section 6.2(c) hereofClosing Date; (e) the Parent and the Stockholders’ Representative Merger Sub shall have entered into received from the Secretary of the Company Escrow Agreement and a certificate (i) certifying the Company Escrow Agreement shall be in full force Charter, (ii) certifying the Bylaws of the Company, (iii) certifying the resolutions of the Board of Directors of the Company, (vi) certifying the resolutions of the stockholders of the Company, and effect and shall not have been anticipatorily breached or repudiated(v) attesting to the incumbency of the officers of the Company; (f) the Parent and each of the Principal Stockholders Merger Sub shall have entered into received from the Company Escrow Agreement and the Company Escrow Agreement shall be in full force and effect and shall not have been anticipatorily breached or repudiated; (g) each issued and outstanding share of the Original Company Preferred Stock shall have been converted into shares President of the Company Common Stock and Company Preferred Stock in accordance with the Seventh Amended and Restated Articles of Incorporation, and each holder thereof shall have waived prior notice a certificate certifying (i) all of the consummation Company’s representations and warranties set forth in set forth in continue to be true and correct in all material respects as of the Merger; Closing Date, except for representations and warranties made as of a specified date, which were true and correct in all material respects as of such date and (hii) prior to the Effective TimeCompany has performed or complied with, in all material respects, all of the convertible securities of the Company shall have been converted into shares of the Company Common Stock and Company Preferred Stock its covenants set forth in Article V required to be performed or shall have been otherwise cancelled and terminated and they shall be of no force or effect; (i) prior to the Effective Time, all of the Company Stock Options and the Company Warrants shall have been exercised or shall have been otherwise cancelled and terminated and they shall be of no force or effect; (j) an officer of the Company shall certify the Final Conversion Schedule and deliver such schedule to the Parent; (k) if applicable and requested by Parent, the Company shall have terminated the 401(k) Plan effective at least one day prior to the Closing Date and all contributions payable to the 401(k) Plan shall have been made. The Company shall have provided the Parent: (i) executed resolutions of the Company Board authorizing the termination; and (ii) an executed amendment to the 401(k) Plan sufficient to ensure compliance complied with all applicable requirements of the Code and regulations thereunder so that the tax-qualified status of the 401(k) Plan will be maintained at the time of termination; (l) the Company’s total non-current liabilities (including, without limitation, any debt of any nature), as determined in accordance with GAAP, shall not exceed $50,000 as of the Closing; excluding $358,932 in building lease obligations through the full term of the lease and $64,567 in non-current obligations to Eventide for ionizer financing; (m) before the Closing, all shareholders loans (including all accrued interest thereon) made to the Company will be forgiven or converted into shares of the Company Common Stock; (n) the Company having a Working Capital Ratio of no less than 1.0 (as calculated in accordance with Exhibit B) on the Closing; (o) the Company shall have amended the Xxxx under this Agreement in accordance with Section 5.21; (p) the Parent shall have been furnished evidence satisfactory to it that all rights granted by the Company to its stockholders and in effect prior to the Closing, including, but not limited to, rights of co-sale, voting, registration, first refusal, first offer, preemption, observation or information or operational covenants, shall have terminated prior to the Closing Date; (qg) the Parent Company shall have received a mutually agreeable opinion of Xxxxxx Xxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel delivered the certificates described in Section 2.4(a) hereof and all other documents required to be delivered to the Company, or another counsel reasonably satisfactory to the Parent; (r) none of the Celebrity Endorsement Agreements will have been terminated Parent on or before the Closing; andClosing Date; (sh) before all actions to be taken by the ClosingCompany in connection with the consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Parent shall have received executed copies of the Xxxx Escrow Agreement, the Emerald Escrow Agreement and the Creditor Escrow Agreement, and each such agreement shall be in full force and effect and not have been anticipatorily breached or repudiatedMerger Sub.

Conditions to Obligations of the Parent and the Merger Sub. The obligations obligation of each of the Parent and the Merger Sub to effect consummate the Merger are also is subject to the satisfaction (or waiver (where permissible pursuant to Applicable Laws) by the Parent and the Merger Sub on or prior to the Closing Date Parent) of the following additional conditions: (a) each of the representations and warranties of the Company set forth in Article 3 III of this Agreement that is qualified by materiality shall be true and correct at and as of the Closing Date as if made at and as of the Closing Date and each of such representations and warranties that is not so qualified shall be true and correct in all material respects (without giving effect to any limitation indicated by the words “Company Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” or “materially”) when made at and as of immediately prior to the Effective Time, Closing Date as if made at and as of such time (except those representations and warranties that address matters only as of a particular date, which shall be true and correct in all respects as of that date)the Closing Date, except where (i) to the failure of extent that such representations and warranties refer specifically to be so an earlier date, in which case such representations and warranties shall have been true and correct would not reasonably as of such earlier date or (ii) for changes contemplated by this Agreement; the Company shall have performed or complied with in all material respects its agreements and covenants required to be expected performed or complied with under this Agreement as of or prior to have, individually or in the aggregate, a Company Material Adverse EffectClosing; (b) the Company shall have performed in all material respects all obligations, and complied in all material respects with the agreements and covenants, in this Agreement required to be performed by or complied with by it at or prior delivered to the ClosingParent and the Merger Sub the Company Certificate; (c) since the date Parent shall have received from counsel to the Company an opinion in substantially the form attached hereto as Exhibit F, addressed to the Parent dated as of this Agreementthe Closing Date (in rendering such opinion, there shall not have been any Company Material Adverse Effect or any eventcounsel may rely upon the representations and certificates of Parent, change, or effect that would, individually or in Merger Sub and the aggregate, reasonably be expected to have a Company Material Adverse EffectCompany); (d) the Parent will Escrow Agent and the Stockholder Representative shall have received a certificate, signed by duly executed and delivered the chief executive officer or chief financial officer of the Company, certifying as Escrow Agreement to the matters set forth in Section 6.2(a), Section 6.2(b), and Section 6.2(c) hereofParent; (e) the Parent Exchange Agent and the Stockholders’ Stockholder Representative shall have entered into duly executed and delivered the Company Escrow Exchange Agreement and to the Company Escrow Agreement shall be in full force and effect and shall not have been anticipatorily breached or repudiatedParent; (f) the Company shall have furnished to Parent and each Merger Sub a certificate of the Principal Stockholders shall have entered into Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted by the Board of Directors of the Company Escrow approving this Agreement and the Merger; (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of Company Escrow Stock necessary to provide the Requisite Stockholder Approval, adopting and approving this Agreement shall be and the Merger; (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date and shall not have been anticipatorily breached or repudiated(iv) attached thereto are true, correct and complete copies of the Charter Documents; (g) each issued and outstanding share of the Original Company Preferred Stock shall have been converted into shares of the Company Common Stock and Company Preferred Stock in accordance with the Seventh Amended and Restated Articles of Incorporation, and each holder thereof shall have waived prior notice of the consummation of the Merger; (h) prior to the Effective Time, all of the convertible securities of the Company shall have been converted into shares delivered to Parent certificates of good standing for the Company Common Stock and Company Preferred Stock or shall have been otherwise cancelled and terminated and they shall be from the State of no force or effect; (i) prior to the Effective Time, all of the Company Stock Options Delaware and the Company Warrants shall have been exercised or shall have been otherwise cancelled and terminated and they shall be State of no force or effect; (j) an officer of the Company shall certify the Final Conversion Schedule and deliver such schedule to the Parent; (k) if applicable and requested by ParentNew Jersey, the Company shall have terminated the 401(k) Plan effective at least one day prior to the Closing Date and all contributions payable to the 401(k) Plan shall have been made. The Company shall have provided the Parent: (i) executed resolutions of the Company Board authorizing the termination; and (ii) an executed amendment to the 401(k) Plan sufficient to ensure compliance with all applicable requirements of the Code and regulations thereunder so that the tax-qualified status of the 401(k) Plan will be maintained at the time of termination; (l) the Company’s total non-current liabilities (including, without limitation, any debt of any nature), as determined in accordance with GAAP, shall not exceed $50,000 as of the Closing; excluding $358,932 in building lease obligations through the full term of the lease and $64,567 in non-current obligations to Eventide for ionizer financing; (m) before the Closing, all shareholders loans (including all accrued interest thereon) made to the Company will be forgiven or converted into shares of the Company Common Stock; (n) the Company having each dated a Working Capital Ratio of no less than 1.0 (as calculated in accordance with Exhibit B) on the Closing; (o) the Company shall have amended the Xxxx Agreement in accordance with Section 5.21; (p) the Parent shall have been furnished evidence satisfactory to it that all rights granted by the Company to its stockholders and in effect prior to the Closing, including, but not limited to, rights of co-sale, voting, registration, first refusal, first offer, preemption, observation or information or operational covenants, shall have terminated reasonable date prior to the Closing Date; (qh) the Company shall cause to be delivered to Parent shall have received duly signed resignations, effective immediately upon the Closing, of all directors of their position as a mutually agreeable opinion director of Xxxxxx Xxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Company, or another counsel reasonably satisfactory to ; provided that no such resignation by any individual shall be a resignation from employment with the ParentCompany if such individual is so employed; (ri) none of the Celebrity Endorsement Agreements will Company shall have been terminated acquired the written consents to the Merger, if any, required to be obtained under the Company’s Contracts with the customers identified on or before Exhibit I (the Closing“Required Consents”); and (sj) before the Closing, the Parent Company shall have received executed copies obtained the termination of the Xxxx Escrow Agreement, the Emerald Escrow Stockholders’ Agreement and the Creditor Escrow Registration Rights Agreement, and each such agreement shall be in full force and effect and not have been anticipatorily breached or repudiated.