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

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent and Sub) of the following further conditions: (a) each of the representations and warranties of the Company (i) set forth in Section 4.2(a) shall be true and correct except for inaccuracies that have not had and would not reasonably be expected to, individually or in the aggregate, result in more than a de minimis increase in the aggregate consideration payable by Parent and Sub pursuant to this Agreement, as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period, in which event such representation or warranty shall be so true and correct only as of such particular date or with respect to such specific period), (ii) set forth in Section 4.1(a), Section 4.3, Section 4.20, Section 4.21 and Section 4.23 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be so true and correct in all material respects only as of such particular date or with respect to such specific period), (iii) set forth in Section 4.7(i) shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (excluding, however, clause (b) of the definition of Company Material Adverse Effect for the purposes of this clause (iii)), and (iv) set forth in this Agreement, other than those Sections specifically identified in clauses (i), (ii) and (iii) of this Section 7.2(a), shall be true and correct as of the date of this Agreement and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be true and correct only as of such particular date or with respect to such specific period), except, in the case of this clause (iv), where the failure to be so true and correct (without giving effect to any limitation as to “materiality”, “Company Material Adverse Effect” or similar qualifications as set forth therein) would not, either individually or in the aggregate, have a Company Material Adverse Effect;

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent and Sub) of the following further conditions: (a) each of the representations and warranties of the Company (i) set forth in Section 4.2(a) shall be true and correct except for inaccuracies that have not had and would not reasonably be expected to, individually or in the aggregate, result in more than a de minimis increase in the aggregate consideration payable by Parent and Sub pursuant to this Agreement, inaccuracies as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period, period in which event such representation or warranty shall be so true and correct only as of such particular date or with respect to such specific period), (ii) set forth in Section 4.1(a), Section 4.2(b), Section 4.3, Section 4.20, 4.20 and Section 4.21 and Section 4.23 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be so true and correct in all material respects only as of such particular date or with respect to such specific period), (iii) set forth in Section 4.7(i) shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (excluding, however, clause (b) of the definition of Company Material Adverse Effect for the purposes of this clause (iii)), ) and (iv) set forth in this Agreement, other than those Sections specifically identified in clauses (i), (ii) and (iii) of this Section 7.2(a), shall be true and correct as of the date of this Agreement and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be true and correct only as of such particular date or with respect to such specific period), except, in the case of this clause (iv), where the failure to be so true and correct (without giving effect to any limitation as to “materiality”, “Company Material Adverse Effect” or similar qualifications as set forth therein) would not, either individually or in the aggregate, have a Company Material Adverse Effect;

Conditions to the Obligations of Parent and Sub. The obligations of Parent and Sub to consummate the Merger are subject to the satisfaction (or waiver by Parent and SubParent) at or prior to the Closing of the following further conditions: (a) (i) each of the representations and warranties of the Company (i) set forth in in, the first clause of Section 4.2(a4.8 (Absence of Certain Changes) and Section 4.17 (Board Vote; Shareholder Vote; Takeover Statutes) shall be true and correct except for inaccuracies that have not had and would not reasonably be expected to, individually or in accurate on the aggregate, result in more than a de minimis increase in the aggregate consideration payable by Parent and Sub pursuant to this AgreementClosing Date, as of the date of this Agreement if made at and as of the Closing Date as if made on such time (other than those representations and as of the Closing Date (unless any such representation or warranty addresses warranties that address matters only as of a particular date or only with respect to a specific periodperiod of time, in which event case such representation or warranty shall representations and warranties need only be so true and correct only accurate as of such particular date or with respect to such specific period), (ii) the representations and warranties of the Company set forth in Section 4.1(a), Section 4.3, Section 4.20, Section 4.21 and Section 4.23 4.3(a) (Capitalization) shall be true and correct in all material respects as of the date of this Agreement and as of respects, except for any de minimis inaccuracy, on the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be so true and correct in all material respects only as of such particular date or with respect to such specific period), (iii) each of the representations and warranties of the Company set forth in Article IV (except Section 4.7(i4.3(a) (Capitalization), the first clause of Section 4.8 (Absence of Certain Changes) and Section 4.17 (Board Vote; Shareholder Vote; Takeover Statutes), each of which is to be addressed in accordance with clause (i) or (ii) above) shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (excluding, however, clause (b) of the definition of Company Material Adverse Effect for the purposes of this clause (iii)), and (iv) set forth in this Agreement, other than those Sections specifically identified in clauses (i), (ii) and (iii) of this Section 7.2(a), shall be true and correct as of the date of this Agreement and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be true and correct only as of such particular date or with respect to such specific period), except, in the case of this clause (iv), where the failure to be so true and correct accurate (without giving effect to any limitation as to “materiality”, ” or “Company Material Adverse Effect” or and words of similar qualifications as import set forth therein) as of the Closing Date as if made at and as of such time (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, in which case such representations and warranties need only be true and accurate as of such date or with respect to such period), except where the failure of such representations and warranties to be so true and accurate (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” and words of similar import set forth therein), would not, either individually or in the aggregate, have a Company Material Adverse Effect; (b) the Company shall have performed in all material respects all of the obligations hereunder required to be performed by it at or prior to the Closing; (c) since the date of this Agreement, there shall not have occurred any event, occurrence, fact, condition, circumstance or change that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect; (d) Parent shall have received a certificate signed by an executive officer of the Company, dated as of the Closing Date, to the effect that the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied; (e) the Company shall have received and delivered to Parent correct and complete copies of the Shareholder Consents adopting this Agreement and the other Transaction Documents and approving of the transactions contemplated hereby (including the Merger) and thereby by the holders of record of all of the shares of Common Stock entitled to vote thereon; (f) the Shareholder Representative and the Escrow Agent shall have executed and delivered to Parent the Escrow Agreement; (g) the Company and each holder of Common Stock or Company Options shall have executed a counterpart of the Equity Holder Letter Agreement and the Company shall have delivered a fully-executed copy of the Equity Holder Letter Agreement to Parent; provided that this condition shall be deemed waived if not all the holders (each a “Non-Executing Holder”) of Common Stock or Company Options shall have executed a counterpart of the Equity Holder Letter to the extent that the holders of Common Stock and Company Options shall have agreed to be responsible for each such Non-Executing Holder’s Holder Overpayment Amount; (h) Xxxx Xxxxxxxxx shall have executed the Non-Competition Agreement in the form attached hereto as Exhibit I (the “Non-Competition Agreement”) and the Company shall have delivered an executed copy of the Non-Competition Agreement to Parent; (i) the Company shall have delivered to Parent (i) a certified copy of resolutions of the Company’s board of directors, or such committee of the Company’s board of directors designated to administer the Donlen Corporation Employee Stock Option Plan, approving the cancellation of all Company Options as of the Effective Time and (ii) a certified copy of resolutions of the Company’s board of directors, or such committee of the Company’s board of directors designated to administer the 401(k) Plan, approving the termination of all 401(k) Plan at least one (1) Business Day prior to the Closing Date. (j) The Company shall have delivered to Parent evidence in form and substance reasonably satisfactory to Parent that each of the Affiliate Agreements listed on Part I of Schedule 4.22 of the Company Disclosure Schedule has been terminated and that any and all rights and claims under such Affiliate Agreements have been released and waived by the applicable counterparties to such Affiliate Agreements; (k) the waivers attached hereto as Exhibit J evidencing the retention of the Conduit Facilities shall be in full force and effect and all conditions precedent, if any, to the effectiveness of such waivers shall have been satisfied or waived; (l) the Company shall have delivered to Parent evidence in form and substance reasonably satisfactory to Parent either that (i) the 280G Approval was obtained or (ii) that the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, in accordance with the waivers of those payments and/or benefits referenced in Section 6.7(b) which were executed by the affected individuals; and (m) the Company shall have provided to Parent a certificate of non-foreign status for each shareholder in the form contained in Section 1.1445-2(b)(2)(iv) of the Regulations.