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

Conditions to the Obligations of Parent and MergerSub. The obligations of Parent and MergerSub to consummate the Merger are further subject to the satisfaction or waiver in writing (as permitted by applicable Law) at or prior to the Effective Time of the following additional conditions: (a) The representations and warranties of the Company contained in this Agreement that are qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects (taking into account such qualifications as to materiality or Company Material Adverse Effect), and those not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except that to the extent those representations and warranties which address matters only as of a particular date shall be true and correct as of such date). (b) The Company shall have performed, in all material respects, all obligations and complied with, in all material respects, its agreements and covenants to be performed or complied with by it under this Agreement on or prior to the Effective Time. (c) The Company shall have delivered to Parent a certificate, dated the date of the Effective Time, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in Sections 8.02(a) and 8.02(b). (d) Since the date of this Agreement, there shall not have occurred any event, change or occurrence that, individually or in the aggregate, has resulted in a Company Material Adverse Effect. (e) Parent shall have received a tax opinion of Xxxxxxx XxXxxxxxx LLP, or other counsel to the Company satisfactory to the Parent, dated as of the date of the Closing Date, prior to the Effective Time, in substantially the form attached hereto as Exhibit D (such opinion shall be based upon customary assumptions and customary representations made by the Company and its Subsidiaries, and shall be subject to such changes or modifications from the language set forth on such exhibit as may be deemed necessary or appropriate by Xxxxxxx XxXxxxxxx LLP (or such counsel rendering the opinion) and as shall be reasonably satisfactory to Parent) opining that (i) the Company has been organized and has operated in conformity with the requirements for qualification as a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 1999 through and including the taxable year of the Company ending on the Closing Date; and (ii) the Operating Partnership, since the formation of the Operating Partnership, has (x) qualified at all times as a partnership or as a disregarded entity under the Code and not as an association taxable as a corporation, and (y) not qualified as a “publicly traded partnership” within the meaning of Section 7704(b) of the Code. (f) Parent shall have received from the Company a properly completed and duly executed certificate substantially in the form attached hereto as Exhibit K (the “FIRPTA Certificate”).

Conditions to the Obligations of Parent and MergerSub. The obligations of Parent and MergerSub to consummate the Merger are further subject to the satisfaction or waiver in writing (as permitted by applicable Law) at or prior to the Effective Time of the following additional further conditions: (a) The (i) the Company shall have performed in all material respects all of its obligations required to be performed by it under this Agreement at or before the Effective Time, (ii) the representations and warranties of the Company that are contained in this Agreement that are qualified as and in any certificate or other writing delivered by the Company pursuant to this Agreement, disregarding all qualifications contained herein or therein relating to materiality or Company Material Adverse Effect Effect, shall be true and correct in all respects (taking into account such qualifications as to materiality or Company Material Adverse Effect), and those not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement at and as of the Closing DateEffective Time, as though if made on at and as of the Closing Date that time (except that to the extent those representations and warranties expressly relate to an earlier date, in which address matters only case as of a particular date that earlier date), provided that the condition set forth in this 9.02(a)(ii) shall only be deemed to have not been satisfied if the failure of any such representation(s) and warranty(ies) to be so true and correct as of such date). (b) The Company shall have performed, in all material respects, all obligations and complied with, in all material respects, its agreements and covenants has had or would reasonably be expected to be performed or complied with by it under this Agreement on or prior to the Effective Time. (c) The Company shall have delivered to Parent a certificate, dated the date of the Effective Time, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in Sections 8.02(a) and 8.02(b). (d) Since the date of this Agreement, there shall not have occurred any event, change or occurrence thathave, individually or in the aggregate, has resulted in a Company Material Adverse Effect. , (eiii) no event, occurrence, development or state of circumstances or facts shall have occurred or arisen that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (iv) Parent shall have received a tax opinion certificate signed by the Chief Executive Officer, the Chief Financial Officer and the General Counsel of Xxxxxxx XxXxxxxxx LLP, the Company to the foregoing effect; (b) there shall not have been instituted or pending any action or proceeding (or any investigation or other counsel inquiry that would be reasonably expected to result in that action or proceeding) by any Governmental Entity or by any other Person before any court or other Governmental Entity, (i) challenging or seeking to make illegal, to delay materially or otherwise, directly or indirectly, to restrain or prohibit the Company satisfactory to the Parent, dated as consummation of the date Merger or seeking to obtain material damages or (ii) seeking to restrain or prohibit Parent’s ownership or operation (or that of its respective Subsidiaries or Affiliates) of all or any material portion of the Closing Date, prior to the Effective Time, in substantially the form attached hereto as Exhibit D (such opinion shall be based upon customary assumptions and customary representations made by business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, or to compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole; (c) there shall be subject not have been after the date of this Agreement any statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to such changes the Merger, by any Governmental Entity, other than the application of the waiting period provisions of the HSR Act to the Merger and any applicable waiting periods under the Foreign Antitrust Laws, that, in the reasonable judgment of Parent, is likely, directly or modifications from indirectly, to result in any of the language set forth on such exhibit as may be deemed necessary or appropriate by Xxxxxxx XxXxxxxxx LLP (or such counsel rendering the opinion) and as shall be reasonably satisfactory consequences referred to Parent) opining that in clauses (i) the Company has been organized and has operated in conformity with the requirements for qualification as a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 1999 through and including the taxable year of the Company ending on the Closing Date; and or (ii) of paragraph (b) above; (d) the Operating PartnershipCompany shall have delivered a certification, since in a form reasonably acceptable to Parent and the formation Company, dated not more than 30 days before the Effective Time and signed by the Company to the effect that the Company is not, nor has it been within five years of the Operating Partnershipdate of the certification, has (x) qualified at all times as a partnership or as a disregarded entity under the Code and not as an association taxable as a corporation, and (y) not qualified as a “publicly traded partnershipUnited States real property holding corporation” within the meaning of as defined in Section 7704(b) 897 of the Code. (e) All consents, approvals, assignments, waivers, authorizations or other certificates from third parties respecting which the failure to obtain, individually or in the aggregate, would be reasonably expected to have a Material Adverse Effect shall have been duly executed by such third parties. (f) Parent The holders of not more than 8.5% of the outstanding shares of Company Common Stock shall have received from the Company a properly completed and duly executed certificate substantially demanded appraisal of their shares in the form attached hereto as Exhibit K (the “FIRPTA Certificate”)accordance with Delaware Law.

Conditions to the Obligations of Parent and MergerSub. The respective obligations of Parent and MergerSub to consummate the Merger transactions contemplated by this Agreement are further subject to the satisfaction or waiver in writing (as permitted by applicable Law) fulfillment at or prior to the Effective Time of each of the following additional conditions, any or all of which may be waived in whole or part by Parent and MergerSub, as the case may be, to the extent permitted by applicable law: (a) The representations and warranties of the Company contained in this Agreement that are qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects (taking into account such qualifications as to materiality or Company Material Adverse Effect), and those not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement respects at and as of the Closing Date, Date with the same effect as though such representations and warranties had been made on and as of the Closing Date (except Date; in its sole and absolute discretion, Parent is satisfied with any matter reflected, listed, or disclosed in the updated schedules that to was not reflected, listed or disclosed in the extent those representations original schedules; the Company, the Signing Company Shareholders, and warranties which address matters only as all other shareholders of a particular date shall be true and correct as of such date). (b) The the Company shall have performed, performed and complied in all material respects, materials respects with all obligations agreements required by this Agreement and complied with, in all material respects, its the other agreements and covenants documents to be executed in connection with this Agreement to be performed or complied with by it under this Agreement on the Company, the Signing Company Shareholders, and all other shareholders of the Company at or prior to the Closing Date; and Parent, and MergerSub, shall have received a certificate, dated as of the Closing Date, signed by a duly elected officer of the Company to the foregoing effects; (b) Parent shall have received an opinion of Xxxx Xxxxx LLP, dated the Effective Time, based on the representations of Parent, MergerSub, and the Company referred to in Section 6.15 substantially to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) each of Parent, MergerSub, and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) no gain or loss will be recognized by the Company, Parent, or MergerSub as a result of the Merger. (c) Holders of shares of Company Common Stock representing no more than 0% of the outstanding Company Capital Stock, shall have exercised and not withdrawn, forfeited, or otherwise permitted to lapse dissenter's rights under the CGCL in respect of their shares of Company Capital Stock in connection with the Merger. (d) The Company shall have delivered to Parent a certificate, dated the date minute books and stock transfer records of the Effective Time, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in Sections 8.02(a) and 8.02(b). (d) Since the date of this Agreement, there shall not have occurred any event, change or occurrence that, individually or in the aggregate, has resulted in a Company Material Adverse EffectCompany. (e) All consents, waivers, and approvals of any Governmental Entity or third person required in connection with the execution, delivery, and performance of this Agreement (including, without limitation, the consents listed on Schedule 4.4(c)) shall have been obtained. (f) [Reserved] (g) The Company shall have delivered to Parent and MergerSub such good standing certificates and officers' certificates and similar documents as counsel for Parent and MergerSub shall have reasonably requested prior to the Closing Date, and all actions necessary to correct and complete the corporate records of the Company shall have been taken, including, without limitation, the filing of any Form D with respect to the Company's previous offers or sales of its securities and any filings required in connection with the Company Option Plan. (h) Parent shall have received a tax opinion Shareholders Agreement executed by each shareholder of Xxxxxxx XxXxxxxxx LLP, the Company substantially in the form attached as Exhibit C and the representations and warranties of each shareholder contained in the Shareholders Agreement and Letters of Transmittal shall be true and correct in all material respects at and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; each such shareholder shall have performed and complied with all agreements required by the Shareholders Agreement and Letters of Transmittal to be performed or other counsel complied with by such shareholder at or prior to the Company satisfactory to the Closing Date; and Parent, and MergerSub, shall have received a certificate, dated as of the Closing Date, signed by each such shareholder to the foregoing effects. (i) Employment Agreements shall have been duly executed by the Company (and Parent if desired by Parent) and those current employees of the Company, and those new employees of the Company hired before the Closing, designated by Parent, in form and substance satisfactory to Parent. (j) Non-Competition Agreements shall have been duly executed by the Company and/or, Parent, as designated by Parent, and those current employees of the Company, and those new employee of the Company hired before the Closing, designated by Parent, in form and substance satisfactory to Parent. (k) All outstanding rights, warrants, options and convertible securities of Company described in Section 4.1 (except for those options for which Substituted Stock Options are being issued) shall have been terminated, canceled or otherwise eliminated to the satisfaction of Parent. Without limiting the foregoing, CTX shall have delivered to the Company and Parent an executed acknowledgement and release whereby CTX acknowledges that it has no right to acquire, pursuant to the Series A Preferred Stock Purchase Agreement dated as of February 24, 1999 between the Company (formerly known as Paneltronix, Inc.) or otherwise, any additional equity or ownership interest in the Company, in form and substance satisfactory to Parent. (l) Except as disclosed in this Agreement or the Schedules hereto, there shall not have been any change or series of changes that have a material adverse effect or could reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of Company since the date of the Closing DateInterim Financial Statement. (m) Xxxxxx Xxxxx, prior to each of the Effective Timecurrent employees of the Company, any new employee of the Company hired before the Closing, and any former employees of the Company or other persons designated by Parent, shall have entered into a Confidentiality and Assignment of Inventions and Intellectual Property Agreement with the Company, in substantially form and substance satisfactory to Parent, and each of Xxxxxx Xxxxx, the current employees of the Company designated by Parent, any new employee of the Company hired before the Closing designated by Parent, and other persons designated by Parent, shall have entered into a Confidentiality and Assignment of Inventions and Intellectual Property Agreements with the Parent, in form attached hereto as Exhibit D and substance satisfactory to Parent. (such opinion shall be based upon customary assumptions and customary representations made by n) Before Closing, the Company and its Subsidiaries, and Board shall be subject have taken all action necessary to such changes or modifications from terminate the language set forth on such exhibit as may be Company's 401K Plan. (o) If deemed necessary or appropriate desirable by Xxxxxxx XxXxxxxxx LLP Parent, before the Effective Time all of the outstanding shares of Company Preferred Stock shall have been converted into shares of Company Common Stock. (p) The following agreements and rights between or such counsel rendering among the opinion) Company and as its shareholders shall be reasonably have been terminated and released, and all rights of the shareholders thereunder and all obligations of the Company shall have been terminated and released, by written instruments signed by all the shareholders of the Company and otherwise in form and substance satisfactory to Parent) opining that : (i) each of the rights of first refusal provisions and other rights, obligations and terms contained in Section 4 of each Common Stock Purchase Agreement between the Company has been organized and has operated in conformity with the requirements for qualification as a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 1999 through and including the taxable year holders of the Company ending on the Closing DateCommon Stock; and (ii) the Operating Partnership, since the formation right of CTX to purchase an additional 2,200,000 of Series A Company Preferred Stock and each of the Operating Partnershiprepurchase rights, has (x) qualified at all times as a partnership or as a disregarded entity under the Code rights of first refusal, resale restrictions and not as an association taxable as a corporationother rights, obligations and (y) not qualified as a “publicly traded partnership” within the meaning of Section 7704(b) terms contained in Sections 1.2, 2.3, 3.5, 4, 5, 7, 8 and 9 of the CodeSeries A Preferred Stock Purchase Agreement dated as of February 24, 1999 between the Company (formerly known as Paneltronix, Inc.) and CTX; (iii) each of the repurchase rights, rights of first refusal, resale restrictions and other rights, obligations and terms contained in Sections 2.3, 3.5, 4, 5, 7 and 8 of each of the Series B Preferred Stock Purchase Agreement between the Company (formerly known as Paneltronix, Inc.) and each of the holders of Company Preferred Stock; (iv) any other agreements designated by Parent between and/or among the Company and/or any of the shareholders of the Company. (fq) Each of CTX and any other shareholder of the Company designated by Parent shall released any claim it may have received from to any Intellectual Property rights of the Company a properly or any technology of the Company, and shall have agreed to indemnify, defend and hold harmless the Company and the Parent for any Losses suffered or incurred by the Company or Parent or any Third Party Claims made against the Company or Parent with respect to any matters involving Intellectual Property rights of the Company or any of the Company's technology arising in connection with any actions taken by CTX or any such other shareholder, by written instrument in form and substance satisfactory to Parent. (r) All holders of Company Capital Stock shall have accurately completed and duly executed certificate substantially and delivered to Purchaser an accredited investor questionnaire in form and substance satisfactory to Parent. (s) The completion by Parent of a due diligence review and investigation by Parent, its counsel, accountants and other advisors, of the form attached hereto organization, capitalization, assets, technologies, liabilities, business and financial condition of the Company (including, without limitation, the intellectual property rights and risks of the Company, the restrictions under California or Taiwan law on the transactions contemplated by this Agreement, the Company's observance of corporate formalities and other requirements of corporate law, and the compliance by the Company's employees with applicable visa requirements), all of which must be satisfactory to Parent in its sole discretion. The decision of Parent and MergerSub to consummate the transactions contemplated by this Agreement without the satisfaction of any of the preceding conditions shall not constitute a waiver of any of the Company's representations, warranties, covenants, or indemnities herein, except as Exhibit K (the “FIRPTA Certificate”)otherwise provided in Section 6.11.

Conditions to the Obligations of Parent and MergerSub. The obligations of Parent and MergerSub to consummate the Merger are further subject to the satisfaction or waiver by Parent of the following further conditions: (i) The Company shall have performed in writing (as permitted all material respects all of its obligations hereunder required to be performed by applicable Law) it at or prior to the Effective Time of Time, (ii) the following additional conditions: (a) The representations and warranties of the Company contained in this Agreement that are qualified as to materiality or Company Material Adverse Effect shall be true Agreement, disregarding all qualifications and correct exceptions contained in all respects (taking into account such qualifications as of those representations and warranties relating to materiality or Company Material Adverse Effect), and those not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement at and as of the Closing DateEffective Time, as though if made on at and as of the Closing Date that time (except other than representations or warranties that to the extent those representations and warranties which address matters only as of a particular certain date which shall be true and correct as of such that date). (b) The Company shall have performed, in all material respects, all obligations and complied with, in all material respects, its agreements and covenants to be performed or complied with by it under this Agreement on or prior to the Effective Time. (c) The Company shall have delivered to Parent a certificate, dated the date of the Effective Time, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in Sections 8.02(a) and 8.02(b). (d) Since the date of this Agreement, there shall not have occurred any event, change or occurrence only those exceptions that, individually or in the aggregate, has resulted do not have, and would not reasonably be expected to have, a Company Material Adverse Effect, and (iii) Parent shall have received a certificate signed by the chief executive officer and the chief financial officer of the Company to the foregoing effect. (b) There shall not have been instituted or pending any action or proceeding (or any investigation or other inquiry that would reasonably be expected to result in any such action or proceeding) by any Governmental Entity, (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger or seeking to obtain material damages, (ii) seeking to restrain or prohibit Parent’s ownership or operation (or that of its respective Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, or to compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole or (iii) that otherwise is likely to have a Parent Material Adverse Effect or a Company Material Adverse Effect. (ec) Parent shall have received a tax an opinion of Xxxxxxx XxXxxxxxx LLPXxxxx Xxxx & Xxxxxxxx in form and substance reasonably satisfactory to Parent, or other on the basis of certain facts, representations and assumptions set forth in that opinion, dated the Effective Time, to the effect that the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provision of Section 368(a) of the Code and that each of Parent, MergerSub and the Company will be a party to the reorganization within the meaning of Section 368(a) of the Code and that Parent will be treated as a corporation under Section 367(a)(1) of the Code with respect to the transfer of the shares of Parent ADSs (or, if applicable, Parent Ordinary Shares) pursuant to the Merger. In rendering that opinion, such counsel shall be entitled to rely upon representations of officers of Parent and the Company substantially similar to the form of Exhibits F and G to this Agreement (including any modifications thereto that may be requested by counsel to Parent or the Company satisfactory if the Merger is effected in the manner described in Section 2.01(b)). Counsel’s opinion shall not address the tax consequences applicable to any stockholder of the Company who, immediately after the Merger, will be a “five percent transferee shareholder” with respect to Parent within the meaning of U.S. Treasury Regulation Section 1.367(a)-3(c)(5). (d) The Company shall have delivered a certification in the form attached as Exhibit H to this Agreement dated not more than 30 days prior to the ParentEffective Time and signed by the Company to the effect that the Company is not, dated as nor has it been within five years of the date of the Closing Datecertification, prior to the Effective Time, in substantially the form attached hereto as Exhibit D (such opinion shall be based upon customary assumptions and customary representations made by the Company and its Subsidiaries, and shall be subject to such changes or modifications from the language set forth on such exhibit as may be deemed necessary or appropriate by Xxxxxxx XxXxxxxxx LLP (or such counsel rendering the opinion) and as shall be reasonably satisfactory to Parent) opining that (i) the Company has been organized and has operated in conformity with the requirements for qualification as a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 1999 through and including the taxable year of the Company ending on the Closing Date; and (ii) the Operating Partnership, since the formation of the Operating Partnership, has (x) qualified at all times as a partnership or as a disregarded entity under the Code and not as an association taxable as a corporation, and (y) not qualified as a “publicly traded partnershipUnited States real property holding corporation” within the meaning of as defined in Section 7704(b) 897 of the Code. (fe) Parent shall have received from At any time after the date hereof, except as to matters expressly disclosed in Section 4.10(b) of the Company Disclosure Schedule, there shall not have occurred and be continuing as of or otherwise arisen before the Effective Time any event, occurrence or development of a properly completed and duly executed certificate substantially state of circumstances or facts which, individually or in the form attached hereto as Exhibit K (the “FIRPTA Certificate”)aggregate, has or would reasonably be expected to have a Company Material Adverse Effect.

Conditions to the Obligations of Parent and MergerSub. The obligations of Parent and or MergerSub to consummate effect the Merger are further subject to the satisfaction or waiver in writing (as permitted by applicable Law) at or prior to the Effective Time of each of the following additional conditions:conditions (each of which is for the exclusive benefit of Parent and MergerSub and may be waived by Parent, on behalf of itself and MergerSub): (a) The all covenants of Apple Holdco under this Agreement to be performed on or before the Closing Date shall have been duly performed by Apple Holdco in all material respects; (b) the representations and warranties of the Company contained Apple Holdco in this Agreement that are qualified (which for purposes of this paragraph shall be read as to though none of them contained any materiality or Company Material Adverse Effect material adverse effect qualifications) shall have been true and correct on the date of this Agreement and shall be true and correct as of the Closing with the same effect as though made as of the Closing, except where the failure of such representations and warranties to be true and correct in all respects (taking into account such qualifications as to materiality of the applicable time would not, individually or Company in the aggregate, have an Apple Material Adverse Effect). In addition, the representations and those not so qualified warranties set forth in Section 5.5(a) shall be have been true and correct in all material respects, in each case as of on the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except that to the extent those representations and warranties which address matters only as of a particular date shall be true and correct as of such date). (b) The Company shall have performed, in all material respects, all obligations and complied with, in all material respects, its agreements and covenants to be performed or complied the Closing with by it under this Agreement on or prior to the Effective Time.same effect as though made as of the Closing; (c) The Company Parent shall have delivered received a certificate of Apple Holdco addressed to Parent a certificate, and dated the date of the Effective TimeClosing Date, signed by an executive officer of Apple Holdco (on Apple Holdco's behalf and without personal liability), confirming the Company and certifying as to the satisfaction of the conditions specified matters set forth in Sections 8.02(aSection 7.3(a) and 8.02(bSection 7.3(b).; (d) Since no event, circumstance, change or effect shall have occurred since the date of this Agreement, there shall not have occurred any event, change or occurrence Agreement that, individually or in the aggregate, has resulted in a Company with all other events, circumstances, changes and effects, is or could reasonably be expected to have an Apple Material Adverse Effect.; (e) there is no Action pending, or threatened in writing, which the board of directors of Parent determines, following the receipt of the advice from its outside counsel could reasonably be expected to have an Apple Material Adverse Effect; (f) Apple Holdco shall, on or prior to the Closing Date, provide Parent with a properly executed FIRPTA Notification Letter, in form and substance reasonably satisfactory to Parent, which states that shares of capital stock of Apple Holdco do not constitute "United States real property interests" under Section 897(c) of the Code, for purposes of satisfying Parent's obligations under Treasury Regulations Section 1.1445-2(c)(3). In addition, simultaneously with delivery of such Notification Letter, Apple Holdco shall have provided to Parent, as agent for Apple Holdco, a form of notice to the IRS in accordance with the requirements of Treasury Regulations Section 1.897-2(h)(2) along with written authorization for Parent to deliver such notice form to the IRS on behalf of Apple Holdco upon the consummation of the Merger; (g) Parent shall have received a tax the opinion of Xxxxxxx XxXxxxxxx LLPSonnenschein Nath & Rosenthal LLP in form and substance reasonably satisxxxxxxx xx Xxxxxx, or other counsel to the Company satisfactory to the Parentox xxx xxxis of certain facts, representations and assumptions set forth in such opinion, dated as of the date of the Closing Date, prior to the Effective Time, in substantially to the form attached hereto as Exhibit D (such opinion shall be based upon customary assumptions and customary representations made by effect that for U.S. federal income tax purposes, the Company and its Subsidiaries, and shall be subject to such changes or modifications from the language set forth on such exhibit as may be deemed necessary or appropriate by Xxxxxxx XxXxxxxxx LLP (or such counsel rendering the opinion) and as shall be reasonably satisfactory to Parent) opining that (i) the Company has been organized and has operated in conformity with the requirements for qualification as Merger will constitute a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 1999 through and including the taxable year of the Company ending on the Closing Date; and (ii) the Operating Partnership, since the formation of the Operating Partnership, has (x) qualified at all times as a partnership or as a disregarded entity under the Code and not as an association taxable as a corporation, and (y) not qualified as a “publicly traded partnership” reorganization within the meaning of Section 7704(b368(a)(1)(A) and 368(a)(2)(E) of the Code and the exchange of Apple Holdco Common Stock for Strawberry Common Stock pursuant to the Merger will constitute an exchange of securities in pursuance of a plan of reorganization within the meaning of Section 354(a) of the Code.. In rendering such opinion, such counsel shall be entitled to rely upon customary representations of officers of Parent, Apple Holdco, and MergerSub; (fh) Parent Each of Apple Holdco and the Apple Holdco Stockholders shall have received from the Company executed and delivered each Transaction Document to which they are or have been designated to become a properly completed party pursuant to this Agreement; and (i) The Indebtedness of Apple Holdco and duly executed certificate substantially in the form attached hereto as Exhibit K (the “FIRPTA Certificate”)its Subsidiaries shall not exceed $50 million.

Conditions to the Obligations of Parent and MergerSub. The respective obligations of Parent and MergerSub to consummate the Merger transactions contemplated by this Agreement are further subject to the satisfaction or waiver in writing (as permitted by applicable Law) fulfillment at or prior to the Effective Time of each of the following additional conditions, any or all of which may be waived in whole or part by Parent and MergerSub, as the case may be, to the extent permitted by applicable law: (a) The representations and warranties of the Company contained in this Agreement that are qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects (taking into account such qualifications as to materiality or Company Material Adverse Effect), and those not so qualified shall be true and correct in all material respects, in each case respects at and as of the date of this Agreement Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date, as though made on and as of the Closing Date (except that to the extent those that such representations and warranties which address matters only speak as of a particular an earlier date (in which case they shall be true and correct as of such earlier date). (b) The ; the Company shall have performed, performed and complied in all material respects, respects with all obligations and complied with, in all material respects, its agreements and covenants required by this Agreement to be performed or complied with by it under this Agreement on the Company at or prior to the Effective TimeClosing Date; and Parent, and MergerSub, shall have received a certificate, dated as of the Closing Date, signed by a duly elected officer of the Company to the foregoing effects; (b) Prior to the Closing, there shall not have occurred any Material Adverse Effect or any material casualty or damage (whether or not insured) to any facility, property, or equipment owned or used by the Company. (c) The Company shall have delivered to Parent a certificate, dated the date minute books and stock transfer records of the Effective Time, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in Sections 8.02(a) and 8.02(b)Company. (d) Since All material consents, waivers, and approvals of any Governmental Entity or third person required in connection with the date execution, delivery, and performance of this AgreementAgreement (including, there without limitation, all consents listed on Schedule 4.4(c)) shall not have occurred any event, change or occurrence that, individually or in the aggregate, has resulted in a Company Material Adverse Effectbeen obtained. (e) Parent The Company shall have received a tax opinion of Xxxxxxx XxXxxxxxx LLP, or other delivered to Parent and MergerSub such good standing certificates and officers’ certificates and similar documents as counsel for Parent and MergerSub shall have reasonably requested prior to the Company satisfactory to the Parent, dated as of the date of the Closing Date. (f) Holders of no more than 5% of the outstanding shares of Company Common Stock shall have exercised and not withdrawn, forfeited, or otherwise permitted to lapse dissenter’s or similar rights under applicable Law with respect to their shares of Company Common Stock in connection with the Merger. (g) The Company shall have entered into appropriate agreements with each holder of outstanding Company Stock Options, in form and substance acceptable to Parent, providing that: subject to the consummation of the Merger and effective immediately prior to the Effective Time, in substantially the form attached hereto as Exhibit D (such opinion shall be based upon customary assumptions and customary representations made by the Company and its Subsidiaries, and shall be subject to such changes or modifications from the language set forth on such exhibit as may be deemed necessary or appropriate by Xxxxxxx XxXxxxxxx LLP (or such counsel rendering the opinion) and as shall be reasonably satisfactory to Parent) opining that (iA) the Company has been organized Stock Option shall be exercised in full for shares of Company Common Stock, whether or not exercisable, and has operated in conformity with whether or not vested, and (B) the requirements for qualification as a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 1999 through and including the taxable year holder of the Company ending Stock Option may elect to pay the exercise price by means of a promissory note that will be repaid by a corresponding deduction as an offset from the payment that would otherwise be made to such holder on the Closing Date; and (ii) the Operating Partnership, since the formation account of the Operating Partnership, has (x) qualified at all times Tranche One Payment as set forth in Article 2. Any per share exercise price that is unpaid upon the exercise of a partnership or Company Stock Option is referred to as a disregarded entity under the Code and not as an association taxable as a corporation, and (y) not qualified as a “publicly traded partnership” within the meaning of Section 7704(b) of the CodeUnpaid Exercise Price.” (fh) Parent shall have received from the Company obtained a properly completed and duly executed certificate substantially “key man” life insurance policy covering Xxxxxxx Xxxxx in the form attached hereto amount of $4,000,000 for up to two years following the Effective Time, on terms and conditions that are reasonable and acceptable to Parent. (i) The Executive Employment Agreement between the Surviving Corporation and Xxxxxxx Xxxxx shall have been executed and delivered by Xx. Xxxxx. (j) Each of the Stay Bonus Agreements between the Surviving Corporation and each of the employees listed on Schedule 7.2(j) shall have been executed and delivered by such employees. The decision of Parent and MergerSub to consummate the transactions contemplated by this Agreement without the satisfaction of any of the preceding conditions shall not constitute a waiver of any of the Company’s representations, warranties, covenants, or indemnities herein, except as Exhibit K (the “FIRPTA Certificate”)otherwise provided in Section 6.10.

Conditions to the Obligations of Parent and MergerSub. The obligations of Parent and or MergerSub to consummate effect the Merger are further subject to the satisfaction or waiver in writing (as permitted by applicable Law) at or prior to the Effective Time of each of the following additional conditions:conditions (each of which is for the exclusive benefit of Parent and MergerSub and may be waived by Parent, on behalf of itself and MergerSub): (a) The all covenants of Apple under this Agreement to be performed on or before the Closing Date shall have been duly performed by Apple in all material respects; (b) the representations and warranties of the Company contained Apple in this Agreement that are qualified (which for purposes of this paragraph shall be read as to though none of them contained any materiality or Company Material Adverse Effect material adverse effect qualifications) shall have been true and correct on the date of this Agreement and shall be true and correct as of the Closing with the same effect as though made as of the Closing, except where the failure of such representations and warranties to be true and correct in all respects (taking into account such qualifications as to materiality of the applicable time would not, individually or Company in the aggregate, have an Apple Material Adverse Effect). In addition, the representations and those not so qualified warranties set forth in Section 5.5 shall have been true and correct in all material respects on the date of this Agreement and shall be true and correct in all material respects, in each case respects as of the Closing with the same effect as though made as of the Closing; (c) Parent shall have received a certificate of Apple addressed to Parent and dated the Closing Date, signed by an executive officer of Apple (on Apple’s behalf and without personal liability), confirming the matters set forth in Section 7.3(a) and Section 7.3(b); (d) no event, circumstance, change or effect shall have occurred since the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except that to the extent those representations and warranties which address matters only as of a particular date shall be true and correct as of such date). (b) The Company shall have performed, in all material respects, all obligations and complied with, in all material respects, its agreements and covenants to be performed or complied with by it under this Agreement on or prior to the Effective Time. (c) The Company shall have delivered to Parent a certificate, dated the date of the Effective Time, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in Sections 8.02(a) and 8.02(b). (d) Since the date of this Agreement, there shall not have occurred any event, change or occurrence that, individually or in the aggregate, has resulted with all other events, circumstances, changes and effects, is or could reasonably be expected to be materially adverse to the business, financial condition, assets, liabilities or results of operations of Apple and its Subsidiaries, taken as a whole; provided, however, that the foregoing clause shall not include any event, circumstance, change or effect resulting from: (i) changes in general economic conditions, (ii) general changes in the industry of designing, marketing and distributing small electronic kitchen and household appliances in which Apple and its Subsidiaries operate that do not have a Company Material Adverse Effect.disproportionate effect (relative to overall industry performance) on Apple and its Subsidiaries, taken as a whole or (iii) the items identified on Schedule 1.1; (e) Parent shall have received a tax opinion of Xxxxxxx XxXxxxxxx LLPthere will be no Action pending, or other counsel to threatened in writing, which the Company satisfactory to board of directors of Parent determines, following the Parent, dated as receipt of the date advice from its outside counsel, presents a reasonable likelihood of the Closing Dateoccurrence of an Apple Material Adverse Effect or a material adverse effect on the business, prior to financial condition or results of operations of the Effective Time, in substantially the form attached hereto as Exhibit D (such opinion shall be based upon customary assumptions and customary representations made by the Company Surviving Corporation and its Subsidiaries, and shall be subject to such changes or modifications from the language set forth on such exhibit as may be deemed necessary or appropriate by Xxxxxxx XxXxxxxxx LLP (or such counsel rendering the opinion) and as shall be reasonably satisfactory to Parent) opining that (i) the Company has been organized and has operated in conformity with the requirements for qualification taken as a REIT under whole, following the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 1999 through and including the taxable year of the Company ending on the Closing DateMerger; and (ii) the Operating Partnership, since the formation of the Operating Partnership, has (x) qualified at all times as a partnership or as a disregarded entity under the Code and not as an association taxable as a corporation, and (y) not qualified as a “publicly traded partnership” within the meaning of Section 7704(b) of the Code.and (f) Parent shall have received from the Company a properly completed and duly executed certificate substantially in the form attached hereto as Exhibit K third-party consents set forth on Schedule 7.3(f) (the “FIRPTA CertificateRequired Consents”)) shall have been received in accordance with the terms and conditions hereof.

Conditions to the Obligations of Parent and MergerSub. The obligations of Parent and MergerSub to consummate the Merger are further subject to the satisfaction or waiver of the following further conditions: (i) The Company shall have performed in writing (as permitted all material respects all of its obligations hereunder required to be performed by applicable Law) it at or prior to the Effective Time of Time, (ii) (A) the following additional conditions: (a) The representations and warranties of the Company contained in this Agreement that are qualified as by reference to materiality or a Company Material Adverse Effect shall be true and correct when made and at and as of the time of the filing of the Certificate of Merger, as if made at and as of such time (except to the extent any such representation or warranty speaks as of an earlier date, in all respects (taking into account such qualifications as to materiality or Company Material Adverse Effect), and those not so qualified which case it shall be true and correct in as of such date) and (B) all material respects, in each case other representations and warranties of the Company shall have been true and correct when made and at and 49 55 as of the date time of this Agreement and filing of the Certificate of Merger, as if made as of the Closing Date, as though made on and as of the Closing Date such time (except that to the extent those representations and warranties which address matters only any such representation or warranty expressly speaks as of a particular date an earlier date, in which case it shall be true and correct as of such date). (b) The Company shall have performed, in all material respects, all obligations and complied with, in all material respects, its agreements and covenants to be performed or complied with by it under this Agreement on or prior to the Effective Time. (c) The Company shall have delivered to Parent a certificate, dated the date of the Effective Time, signed by an officer of the Company and certifying except for such inaccuracies as to the satisfaction of the conditions specified in Sections 8.02(a) and 8.02(b). (d) Since the date of this Agreement, there shall are not have occurred any event, change or occurrence thatreasonably likely, individually or in the aggregate, has resulted in to have a Company Material Adverse Effect. , and (eiii) Parent shall have received a tax certificate signed by the Chief Executive Officer, President or Chief Financial Officer of the Company to the foregoing effect; (b) The parties shall have obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings contemplated by Sections 4.03 and 5.03 which if not obtained or made (i) would render consummation of the Merger illegal or (ii) (assuming the Effective Time had occurred) would be reasonably likely to have a Parent Material Adverse Effect or a Company Material Adverse Effect; and (c) Parent shall have received an opinion of Xxxxxxx XxXxxxxxx LLP, or other counsel to the Company Davix Xxxx & Xardxxxx xx form and substance reasonably satisfactory to Parent, on the Parentbasis of certain facts, representations and assumptions set forth in such opinion, dated as of the date of the Closing Datefiling of the Certificate of Merger, prior to the Effective Timeeffect that the Merger will be treated for federal income tax purposes as a 368 Reorganization. In rendering such opinion, in substantially the form attached hereto as Exhibit D (such opinion counsel shall be based entitled to rely upon customary assumptions and customary representations made by of officers of the Company and its Subsidiaries, Parent in form and shall be subject to such changes or modifications from the language set forth on such exhibit as may be deemed necessary or appropriate by Xxxxxxx XxXxxxxxx LLP (or such counsel rendering the opinion) and as shall be substance reasonably satisfactory to Parent) opining that (i) the Company has been organized such counsel and has operated in conformity with the requirements for qualification as a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 1999 through and including the taxable year of the Company ending on the Closing Date; and (ii) the Operating Partnership, since the formation of the Operating Partnership, has (x) qualified at all times as a partnership or as a disregarded entity under the Code and not as an association taxable as a corporation, and (y) not qualified as a “publicly traded partnership” within the meaning of Section 7704(b) of the Codeother reasonable assumptions set forth therein. (f) Parent shall have received from the Company a properly completed and duly executed certificate substantially in the form attached hereto as Exhibit K (the “FIRPTA Certificate”).