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

Conditions to the Obligations of Parent and the Merger Subs. The obligations of Parent and the Merger Subs to consummate the Merger are subject to the satisfaction (or waiver by Parent and the Merger Subs) of the following further conditions: (a) (i) the representations and warranties of the Company set forth in Section 4.2(a) shall be true and accurate (except for any de minimis inaccuracies) both when made and as of the Closing Date as if made at and as of such date (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, which representations and warranties need only be true and accurate as of such date or with respect to such period), (ii) the representations and warranties of the Company set forth in Sections 4.3, 4.7 and 4.21 shall be true and accurate both when made and as of the Closing Date as if made at and as of such date (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, which representations and warranties need only be true and accurate as of such date or with respect to such period) and (iii) all other representations and warranties of the Company set forth in this agreement shall be true and accurate in all respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) both when made and as of the Closing Date as if made at and as of such date (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, which 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 would not, individually or in the aggregate with all other failures of such representations and warranties to be true or correct, have a Company Material Adverse Effect; (b) the Company shall have performed or complied in all material respects with its obligations and covenants hereunder required to be performed or complied with by it at or prior to the Closing; (c) Parent shall have received a certificate signed by an executive officer of the Company, dated as of the Closing Date, to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (d) since the date of this Agreement, no fact(s), change(s), event(s), development(s) or circumstance(s) shall have occurred, arisen or come into existence or first become known to Parent, or any worsening thereof (only to the extent of such worsening), and which has had or would reasonably be expected to have, individually or in the aggregate with all such other fact(s), change(s), event(s), development(s) or circumstance(s), a Company Material Adverse Effect; provided that information as and to the extent set forth in any Company SEC Report filed after January 1, 2015 and publicly available prior to the date of this Agreement and only as and to the extent disclosed therein (other than disclosures in any exhibits or schedules thereto or in any documents incorporated by reference therein, and other than any forward-looking disclosures set forth in any “risk factor” section and any disclosures in any section relating to “forward-looking statements” to the extent they are primarily predictive or forward looking in nature) shall be deemed to have been known by the Parent as of the date of this Agreement; and (e) there shall not be pending any suit, action or proceeding by any Governmental Entity of competent jurisdiction, nor shall any such Governmental Entity have stated its intention (which has not subsequently been rescinded) to the Company, Parent or the Merger Subs to commence, any suit, action or proceeding against the Parent, the Merger Subs or the Company (provided that Parent or the Merger Subs shall have notified the Company in writing promptly of any such statement, which notice shall include a reasonably detailed description of the statement and related context), or otherwise in connection with the Merger, (i) seeking to make illegal, restrain, prohibit or delay the making or consummation of the Merger, (ii) seeking to make illegal, restrain or prohibit the ownership or operation by the Parent, the Company or any of their respective Subsidiaries or affiliates, of all or any material portion of the businesses or assets of the Parent or any of its affiliates, on the one hand, or the Company, on the other hand, as a result of or in connection with the Merger, (iii) seeking to make illegal, restrain, prohibit or impose material limitations on the ability of Parent or the Merger Subs effectively to acquire, hold or exercise full rights of ownership of the Company, or (iv) which otherwise would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Conditions to the Obligations of Parent and the Merger Subs. The obligations of Parent and the each Merger Subs Sub to consummate the Merger Mergers are subject to the satisfaction (or waiver by Parent and the Merger Subs) of the following further conditions: (a) (i) the representations and warranties Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Company set forth in Section 4.2(a) shall be true and accurate (except for any de minimis inaccuracies) both when made and as of the Closing Date as if made at and as of such date (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, which representations and warranties need only be true and accurate as of such date or with respect to such period)Effective Time, (ii) the representations and warranties of the Company set forth contained in Sections 4.3this Agreement and in any certificate or other writing delivered by the Company pursuant hereto, 4.7 disregarding all qualifications and 4.21 exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification (except for the representations and warranties contained in Section 4.10(b), for which such qualifiers shall not be disregarded), shall be true and accurate both when made at and as of the Closing Date Effective Time as if made at and as of such date time (other than those representations and or warranties that address matters only as of a particular date or only with respect to a specific period of timecertain date, which representations and warranties need only be true and accurate as of such date or with respect to such period) and (iii) all other representations and warranties of the Company set forth in this agreement shall be true and accurate in all respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) both when made and as of the Closing Date as if made at and correct as of such date (other than those representations and warranties that address matters date), with only as of a particular date or only with respect to a specific period of time, which 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 would notexceptions as, individually or in the aggregate with all other failures of such representations and warranties to be true or correctaggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; (b) Effect on the Company shall have performed or complied in all material respects with its obligations and covenants hereunder required to be performed or complied with by it at or prior to the Closing; (ciii) Parent shall have received a certificate signed by an a senior executive officer of the Company, dated as of the Closing Date, Company to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedforegoing effect; (db) since the date of this Agreement, no fact(s), change(s), event(s), development(s) there shall not have been instituted or circumstance(s) shall have occurred, arisen pending any action or come into existence or first become known to Parent, proceeding (or any worsening thereof (only to the extent of such worsening), and which has had investigation or other inquiry that would reasonably be expected to have, individually or result in the aggregate with all such other fact(s), change(s), event(s), development(s) or circumstance(s), a Company Material Adverse Effect; provided that information as and to the extent set forth in any Company SEC Report filed after January 1, 2015 and publicly available prior to the date of this Agreement and only as and to the extent disclosed therein (other than disclosures in any exhibits or schedules thereto or in any documents incorporated by reference therein, and other than any forward-looking disclosures set forth in any “risk factor” section and any disclosures in any section relating to “forward-looking statements” to the extent they are primarily predictive or forward looking in nature) shall be deemed to have been known by the Parent as of the date of this Agreement; and (e) there shall not be pending any suit, action or proceeding proceeding) by any Governmental Entity of competent jurisdictionEntity, nor shall domestic, foreign or supranational, before any such court or Governmental Entity have stated its intention (which has not subsequently been rescinded) to the Company, Parent or the Merger Subs to commence, any suit, action or proceeding against the Parent, the Merger Subs or the Company (provided that Parent or the Merger Subs shall have notified the Company in writing promptly of any such statement, which notice shall include a reasonably detailed description of the statement and related context), or otherwise in connection with the MergerEntity, (i) challenging or seeking to make illegal, restrain, or otherwise to restrain or prohibit or delay the making or consummation of the Merger, Mergers or (ii) seeking to make illegal, restrain or prohibit the Parent’s ownership or operation by (or that of its respective Subsidiaries or Affiliates) of all or any portion of the Parent, business or assets of the Company and its Subsidiaries, or of Parent and its Subsidiaries, or to compel Parent or any of their respective its Subsidiaries or affiliates, Affiliates to dispose of or hold separate all or any material portion of the businesses business or assets of the Parent or any of Company and its affiliatesSubsidiaries, on the one hand, or the Company, on the other hand, as a result of or in connection with the Merger, (iii) seeking to make illegal, restrain, prohibit or impose material limitations on the ability of Parent or the Merger Subs effectively to acquire, hold or exercise full rights of ownership of the Company, or (iv) which otherwise each case if such action would reasonably be expected to havehave a Material Adverse Effect on Parent or the Company; (c) there shall not have been any action taken, individually or any statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the Mergers, by any court or other Governmental Entity, other than the application of the waiting period provisions of the HSR Act to the Mergers or under laws, rules and regulations analogous to the HSR Act existing in the aggregateforeign jurisdictions set forth in Schedule 9.01(f), that will, directly or indirectly, result in any of the consequences referred to in clauses (i) through (ii) of Section 9.02(b); (d) Parent shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Effective Time, to the effect that for U.S. federal income tax purposes the Mergers, taken together, will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, such counsel shall be entitled to rely upon representations of officers of Parent and the Company in customary form; and (e) the Company shall have delivered a certification in the form attached as Exhibit B hereto dated not more than 30 days prior to 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 date of the certification, a Company Material Adverse Effect“United States real property holding corporation” as defined in Section 897 of the Code.

Conditions to the Obligations of Parent and the Merger Subs. The obligations of Parent and the each Merger Subs Sub to consummate the Merger Mergers are subject to the satisfaction (or waiver by Parent and the Merger Subs) of the following further conditions: (a) (i) the representations and warranties Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Company set forth in Section 4.2(a) shall be true and accurate (except for any de minimis inaccuracies) both when made and as of the Closing Date as if made at and as of such date (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, which representations and warranties need only be true and accurate as of such date or with respect to such period)Effective Time, (ii) the representations and warranties of the Company set forth contained in Sections 4.3this Agreement and in any certificate or other writing delivered by the Company pursuant hereto, 4.7 disregarding all qualifications and 4.21 exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification (except for the representations and warranties contained in Section 4.10(b), for which such qualifiers shall not be disregarded), shall be true and accurate both when made at and as of the Closing Date Effective Time as if made at and as of such date time (other than those representations and or warranties that address matters only as of a particular date or only with respect to a specific period of timecertain date, which representations and warranties need only be true and accurate as of such date or with respect to such period) and (iii) all other representations and warranties of the Company set forth in this agreement shall be true and accurate in all respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) both when made and as of the Closing Date as if made at and correct as of such date (other than those representations and warranties that address matters date), with only as of a particular date or only with respect to a specific period of time, which 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 would notexceptions as, individually or in the aggregate with all other failures of such representations and warranties to be true or correctaggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; (b) Effect on the Company shall have performed or complied in all material respects with its obligations and covenants hereunder required to be performed or complied with by it at or prior to the Closing; (ciii) Parent shall have received a certificate signed by an a senior executive officer of the Company, dated as of the Closing Date, Company to the effect that, to the knowledge of such officer, the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedforegoing effect; (db) since the date of this Agreement, no fact(s), change(s), event(s), development(s) there shall not have been instituted or circumstance(s) shall have occurred, arisen pending any action or come into existence or first become known to Parent, proceeding (or any worsening thereof (only to the extent of such worsening), and which has had investigation or other inquiry that would reasonably be expected to have, individually or result in the aggregate with all such other fact(s), change(s), event(s), development(s) or circumstance(s), a Company Material Adverse Effect; provided that information as and to the extent set forth in any Company SEC Report filed after January 1, 2015 and publicly available prior to the date of this Agreement and only as and to the extent disclosed therein (other than disclosures in any exhibits or schedules thereto or in any documents incorporated by reference therein, and other than any forward-looking disclosures set forth in any “risk factor” section and any disclosures in any section relating to “forward-looking statements” to the extent they are primarily predictive or forward looking in nature) shall be deemed to have been known by the Parent as of the date of this Agreement; and (e) there shall not be pending any suit, action or proceeding proceeding) by any Governmental Entity of competent jurisdictionEntity, nor shall domestic, foreign or supranational, before any such court or Governmental Entity have stated its intention (which has not subsequently been rescinded) to the Company, Parent or the Merger Subs to commence, any suit, action or proceeding against the Parent, the Merger Subs or the Company (provided that Parent or the Merger Subs shall have notified the Company in writing promptly of any such statement, which notice shall include a reasonably detailed description of the statement and related context), or otherwise in connection with the MergerEntity, (i) challenging or seeking to make illegal, restrain, or otherwise to restrain or prohibit or delay the making or consummation of the Merger, Mergers or (ii) seeking to make illegal, restrain or prohibit the Parent’s ownership or operation by (or that of its respective Subsidiaries or Affiliates) of all or any portion of the Parent, business or assets of the Company and its Subsidiaries, or of Parent and its Subsidiaries, or to compel Parent or any of their respective its Subsidiaries or affiliates, Affiliates to dispose of or hold separate all or any material portion of the businesses business or assets of the Parent or any of Company and its affiliatesSubsidiaries, on the one hand, or the Company, on the other hand, as a result of or in connection with the Merger, (iii) seeking to make illegal, restrain, prohibit or impose material limitations on the ability of Parent or the Merger Subs effectively to acquire, hold or exercise full rights of ownership of the Company, or (iv) which otherwise each case if such action would reasonably be expected to havehave a Material Adverse Effect on Parent or the Company; (c) there shall not have been any action taken, individually or any statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the Mergers, by any court or other Governmental Entity, other than the application of the waiting period provisions of the HSR Act to the Mergers or under laws, rules and regulations analogous to the HSR Act existing in the aggregateforeign jurisdictions set forth in Schedule 9.01(f), that will, directly or indirectly, result in any of the consequences referred to in clauses (i) through (ii) of Section 9.02(b); (d) Parent shall have received an opinion of Xxxxx Xxxx & Xxxxxxxx in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Effective Time, to the effect that for U.S. federal income tax purposes the Mergers, taken together, will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, such counsel shall be entitled to rely upon representations of officers of Parent and the Company in customary form; and (e) the Company shall have delivered a certification in the form attached as Exhibit B hereto dated not more than 30 days prior to 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 date of the certification, a Company Material Adverse Effect“United States real property holding corporation” as defined in Section 897 of the Code.