Common use of Conditions to the Obligations of Target Clause in Contracts

Conditions to the Obligations of Target. The obligation of Target to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) Parent must have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Parent contained in this Agreement, to the extent qualified with respect to materiality must be true and correct in all respects, and to the extent not so qualified must be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time as if made at and as of such time, except as expressly contemplated by the Parent Disclosure Letter or this Agreement and except that the accuracy of representations and warranties that by their terms speak as of the date hereof or some other date shall be determined as of such date, and Target must have received a certificate of the Chief Executive Officer and Chief Financial Officer of Parent as to the satisfaction of this condition. (b) From the date hereof through the Effective Time, there must not have occurred any change in the financial condition, business, operations or prospects of Parent that would constitute a Parent Material Adverse Effect. (c) Parent must have delivered to its counsel, Target and Target’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying representations substantially in the form set forth in the Parent Tax Certificate attached as Exhibit 8.3(c) (the “Parent Tax Certificate”). (d) Target must have received an opinion from Vxxxxx & Exxxxx L.L.P. prior to the effectiveness of the Registration Statement and also as of the Effective Time to the effect that (i) the Merger constitutes a reorganization under Section 368(a) of the Code, (ii) Target and Parent shall each be a party to that reorganization, (iii) no gain or loss shall be recognized by a Target stockholder who exchanges Target Common Shares solely for Parent Common Shares except for any gain or loss recognized with respect to any cash received in lieu of fractional share interests, (iv) with respect to a Target shareholder who exchanges Target Common Shares for Parent Common Shares and cash, gain realized (if any), but not loss, will be recognized on the exchange, but only to the extent such gain does not exceed the amount of cash received (excluding any cash received in lieu of fractional Parent Common Shares), and (v) with respect to a Target shareholder who exchanges Target Common Shares solely for cash, gain or loss will be recognized equal to the difference, if any, between the amount of cash received and the tax basis of exchanged Target Common Shares; provided, however, that if counsel to Target shall not render such opinion, this condition shall nonetheless be deemed satisfied if counsel to Parent shall render such opinion to Target; provided further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and the Target Tax Certificate. (e) Target shall have received a “cold comfort” letter from Ernst & Young LLP in the form contemplated by Section 7.14(c).

Conditions to the Obligations of Target. The obligation of Target to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) The representations and warranties of Parent must and Merger Sub set forth in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) as of the Agreement Date and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have performed or result in, a Material Adverse Effect with respect to Parent; provided, however, that the representations and warranties of Parent set forth in Sections 5.1 and 5.2 shall be true and correct at such times in all material respects without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein. Target shall have received a certificate signed on behalf of Parent by an authorized officer to the foregoing effect. (b) Each of Parent and Merger Sub shall have performed or complied in all material respects with each of its obligations under this Agreement and any Ancillary Agreement to which it is a party required to be performed or complied with by it at or prior to the Effective Time and the representations and warranties of Parent contained in this Agreement, pursuant to the extent qualified with respect to materiality must be true and correct in all respects, and to the extent not so qualified must be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time as if made at and as terms of such time, except as expressly contemplated by the Parent Disclosure Letter or this Agreement and except that the accuracy of representations and warranties that by their terms speak as of the date hereof or some other date Agreement. Target shall be determined as of such date, and Target must have received a certificate of the Chief Executive Officer and Chief Financial Officer of Parent as to the satisfaction of this condition. (b) From the date hereof through the Effective Time, there must not have occurred any change in the financial condition, business, operations or prospects of Parent that would constitute a Parent Material Adverse Effect. (c) Parent must have delivered to its counsel, Target and Target’s counsel a certificate signed on behalf of Parent by a duly an authorized officer of to the foregoing effect. (c) From the Agreement Date through the Effective Time, there shall not have occurred any Material Adverse Effect with respect to Parent certifying representations substantially or any event, change or circumstance that would reasonably be likely to result in the form set forth in the Parent Tax Certificate attached as Exhibit 8.3(c) (the “Parent Tax Certificate”)a Material Adverse Effect with respect to Parent. (d) The Target must Board Nominees will have received an opinion from Vxxxxx & Exxxxx L.L.P. prior been appointed to the effectiveness board of the Registration Statement and also as directors of Parent to be effective immediately after the Effective Time to Time, and the effect that (i) the Merger constitutes a reorganization under Section 368(a) board of the Code, (ii) Target and directors of Parent shall each be a party to that reorganization, (iii) no gain or loss shall be recognized by a Target stockholder who exchanges Target Common Shares solely for Parent Common Shares except for any gain or loss recognized with respect to any cash received in lieu of fractional share interests, (iv) with respect to a Target shareholder who exchanges Target Common Shares for Parent Common Shares and cash, gain realized (if any), but not loss, will be recognized on the exchange, but only to the extent such gain does not exceed the amount constituted as provided in Section 7.13 of cash received (excluding any cash received in lieu of fractional Parent Common Shares), and (v) with respect to a Target shareholder who exchanges Target Common Shares solely for cash, gain or loss will be recognized equal to the difference, if any, between the amount of cash received and the tax basis of exchanged Target Common Shares; provided, however, that if counsel to Target shall not render such opinion, this condition shall nonetheless be deemed satisfied if counsel to Parent shall render such opinion to Target; provided further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and the Target Tax CertificateAgreement. (e) Target shall Each consent, waiver and approval set forth in Section 5.4 of this Agreement must have received a “cold comfort” letter from Ernst & Young LLP in the form contemplated by Section 7.14(c)been obtained, and Parent must have provided target with copies thereof.

Conditions to the Obligations of Target. The obligation of Target to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) Parent must have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Parent contained in this Agreement, to the extent qualified with respect to materiality must be true and correct in all respects, and to the extent not so qualified must be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time as if made at and as of such time, except as expressly contemplated by the Parent Disclosure Letter or this Agreement and except that the accuracy of representations and warranties that by their terms speak as of the date hereof or some other date shall be determined as of such date, and Target must have received a certificate of the Chief Executive Officer and Chief Financial Officer of Parent as to the satisfaction of this condition. (b) From the date hereof through the Effective Time, there must not have occurred any change in the financial condition, business, operations or prospects of Parent that would constitute a Parent Material Adverse Effect. (c) Parent must have delivered to its counsel, Target and Target’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the representations substantially in the form set forth in the form of Parent Tax Certificate attached as Exhibit 8.3(c) (the “Parent Tax Certificate”). (d) Target must have received an opinion from Vxxxxx & Exxxxx L.L.P. prior to the effectiveness of the Registration Statement and also as of the Effective Time to the effect that (i) the Merger constitutes a reorganization under Section 368(a) of the Code, (ii) Target and Parent shall each be a party to that reorganization, and (iii) no gain or loss shall be recognized by a the Target stockholder who exchanges stockholders upon the receipt of Parent Common Shares in exchange for Target Common Shares solely for Parent Common Shares pursuant to the Merger except for any gain or loss recognized with respect to any cash received in lieu of fractional share interests, (iv) with respect to a Target shareholder who exchanges Target Common Shares for Parent Common Shares and cash, gain realized (if any), but not loss, will be recognized on the exchange, but only to the extent such gain does not exceed the amount of cash received (excluding any cash received in lieu of fractional Parent Common Shares), and (v) with respect to a Target shareholder who exchanges Target Common Shares solely for cash, gain or loss will be recognized equal to the difference, if any, between the amount of cash received and the tax basis of exchanged Target Common Shares; provided, however, that if counsel to Target shall not render such opinion, this condition shall nonetheless be deemed satisfied if counsel to Parent shall render such opinion to Target; provided further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and the Target Tax Certificate. (e) Target shall have received a “cold comfort” letter from Ernst & Young LLP in the form contemplated by Section 7.14(c).

Conditions to the Obligations of Target. The obligation of Target to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) Parent must have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Parent contained in this Agreement, to the extent qualified with respect to materiality must be true and correct in all respects, and to the extent not so qualified must be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time as if made at and as of such time, except as expressly contemplated by the Parent Disclosure Letter Schedule or this Agreement and except that the accuracy of representations and warranties that by their terms speak as of the date hereof or some other date shall be determined as of such date, and Target must have received a certificate of the Chief Executive Officer and Chief Financial Officer of Parent as to the satisfaction of this condition. (b) From the date hereof through the Effective Time, there must not have occurred any change in the financial condition, business, operations or prospects of Parent that would constitute a Parent Material Adverse Effect. (c) Parent must have delivered to its counsel, Target and Target’s 's counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the representations substantially in the form set forth in the form of Parent Tax Certificate attached as Exhibit 8.3(c) (the “"Parent Tax Certificate”"). (d) Target must have received an opinion from Vxxxxx Xxxxxxxx & Exxxxx L.L.P. Knight, LLP prior to the effectiveness of the Registration Statement and also as of the Effective Time to the effect that (i) the Merger constitutes a reorganization under Section 368(a) of the Code, (ii) Target and Parent shall each be a party to that reorganization, and (iii) no gain or loss shall be recognized by a the Target stockholder who exchanges stockholders upon the receipt of Parent Common Shares in exchange for Target Common Shares solely for Parent Common Shares pursuant to the Merger except for any gain or loss recognized with respect to the Cash Consideration, the Series D Preferred Stock Merger Consideration and any cash received in lieu of fractional share interests, (iv) with respect to a Target shareholder who exchanges Target Common Shares for Parent Common Shares and cash, gain realized (if any), but not loss, will be recognized on the exchange, but only to the extent such gain does not exceed the amount of cash received (excluding any cash received in lieu of fractional Parent Common Shares), and (v) with respect to a Target shareholder who exchanges Target Common Shares solely for cash, gain or loss will be recognized equal to the difference, if any, between the amount of cash received and the tax basis of exchanged Target Common Shares; provided, however, that if counsel to Target shall not render such opinion, this condition shall nonetheless be deemed satisfied if counsel to Parent shall render such opinion to Target; provided further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and the Target Tax Certificate. (e) Target shall have received a “cold comfort” letter from Ernst & Young LLP in the form contemplated by Section 7.14(c).

Conditions to the Obligations of Target. The obligation of Target to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) Parent must have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and Time. (b) Each of the representations and warranties of Parent and Merger Sub contained in this Agreement, Agreement (without giving effect to the extent qualified with respect any materiality qualifications or limitations therein or any references therein to materiality must Parent Material Adverse Effect) shall be true and correct in all respects, and to the extent not so qualified must be true and correct in all material respectscorrect, in each case as of the date hereof and at Effective Time as though made on and as of the Effective Time as if made at and as of such timeTime, except as expressly contemplated by (i) for such failures, individually or in the aggregate, to be true and correct that would not reasonably be expected to have a Parent Disclosure Letter or this Agreement and except Material Adverse Effect; (ii) that the accuracy of those representations and warranties that by their terms speak address matters only as of the date hereof or some other a particular date shall be determined remain true and correct as of such date, and Target must have received a certificate of the Chief Executive Officer and Chief Financial Officer of Parent as subject to the satisfaction qualifications in (i) above; and (iii) for changes expressly permitted as contemplated by the terms of this conditionAgreement. (bc) From the date hereof through the Effective Time, there must shall not have occurred any change in the financial condition, business, operations or prospects of Parent and its Subsidiaries, taken as a whole that would constitute a Parent Material Adverse Effect. (c) , other than any such change that affects both Parent must have delivered to its counsel, and Target and Target’s counsel in a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying representations substantially in the form set forth in the Parent Tax Certificate attached as Exhibit 8.3(c) (the “Parent Tax Certificate”)similar manner. (d) Target must have received a certificate signed on behalf of Parent by both the Chief Executive Officer and the Chief Financial Officer of Parent to the effect that each of the conditions specified in Section 8.3(a)-(c) has been satisfied in all respects. (e) Target must have received the letter from KPMG LLP described in Section 7.12(b). (f) Target must have received an opinion from Vxxxxx & Exxxxx L.L.P. an outside accounting firm or an outside law firm prior to the effectiveness of the Registration Statement and also as of the Effective Time to the effect that (i) the Merger constitutes shall constitute a reorganization under Section 368(a) of the Code, (ii) Parent and Target and Parent shall each be a party to that reorganization, and (iii) no gain or loss shall be recognized by a Target stockholder who exchanges Target Common Shares solely for Parent Common Shares except for any gain or loss recognized with respect to any cash received in lieu shareholders because of fractional share interests, (iv) with respect to a Target shareholder who exchanges Target Common Shares for Parent Common Shares and cash, gain realized (if any), but not loss, will be recognized on the exchange, but only to the extent such gain does not exceed the amount of cash received (excluding any cash received in lieu of fractional Parent Common Shares), and (v) with respect to a Target shareholder who exchanges Target Common Shares solely for cash, gain or loss will be recognized equal to the difference, if any, between the amount of cash received and the tax basis of exchanged Target Common SharesMerger; provided, however, that if counsel Target must have used all reasonable best efforts to Target shall not render obtain such opinion, this condition shall nonetheless be deemed satisfied if counsel to Parent shall render such opinion to Target; provided further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and the Target Tax Certificate. (e) Target shall have received a “cold comfort” letter from Ernst & Young LLP in the form contemplated by Section 7.14(c).

Conditions to the Obligations of Target. The obligation of Target to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) Parent must have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Parent contained in this Agreement, to the extent qualified with respect to materiality must be true and correct in all respects, and to the extent not so qualified must be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time as if made at and as of such time, except as expressly contemplated by the Parent Disclosure Letter or this Agreement and except that the accuracy of representations and warranties that by their terms speak as of the date hereof or some other date shall be determined as of such date, and Target must have received a certificate of the Chief Executive Officer and Chief Financial Officer of Parent as to the satisfaction of this condition. (b) From the date hereof through the Effective Time, there must not have occurred any change in the financial condition, business, operations or prospects of Parent that would constitute a Parent Material Adverse Effect. (c) Parent must have delivered to its counsel, Target and Target’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the representations substantially in the form set forth in the form of Parent Tax Certificate attached as Exhibit 8.3(c) (the “Parent Tax Certificate”). (d) Target must have received an opinion from Vxxxxx Xxxxxx & Exxxxx Xxxxxx L.L.P. prior to the effectiveness of the Registration Statement and also as of the Effective Time to the effect that (i) the Merger constitutes a reorganization under Section 368(a) of the Code, (ii) Target and Parent shall each be a party to that reorganization, and (iii) no gain or loss shall be recognized by a the Target stockholder who exchanges stockholders upon the receipt of Parent Common Shares in exchange for Target Common Shares solely for Parent Common Shares pursuant to the Merger except for any gain or loss recognized with respect to any cash received in lieu of fractional share interests, (iv) with respect to a Target shareholder who exchanges Target Common Shares for Parent Common Shares and cash, gain realized (if any), but not loss, will be recognized on the exchange, but only to the extent such gain does not exceed the amount of cash received (excluding any cash received in lieu of fractional Parent Common Shares), and (v) with respect to a Target shareholder who exchanges Target Common Shares solely for cash, gain or loss will be recognized equal to the difference, if any, between the amount of cash received and the tax basis of exchanged Target Common Shares; provided, however, that if counsel to Target shall not render such opinion, this condition shall nonetheless be deemed satisfied if counsel to Parent shall render such opinion to Target; provided further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and the Target Tax Certificate. (e) Target shall have received a “cold comfort” letter from Ernst & Young LLP in the form contemplated by Section 7.14(c).

Conditions to the Obligations of Target. The obligation of Target to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) Parent must have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Parent contained in this Agreement, to the extent qualified with respect to materiality must be true and correct in all respects, and to the extent not so qualified must be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time as if made at and as of such time, except as expressly contemplated by the Parent Disclosure Letter Schedule or this Agreement and except that the accuracy of representations and warranties that by their terms speak as of the date hereof or some other date shall be determined as of such date, and Target must have received a certificate of the Chief Executive Officer and Chief Financial Officer of Parent as to the satisfaction of this condition. (b) From the date hereof through the Effective Time, there must not have occurred any change in the financial condition, business, business or operations or prospects of Parent that would constitute a Parent Material Adverse Effect. (c) Parent must have delivered to its counsel, Target and Target’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the representations substantially in the form set forth in the Parent Tax Certificate attached as Exhibit 8.3(c) Section 5.24 (the “Parent Tax Certificate”). (d) Target must have received an opinion from Vxxxxx & Exxxxx L.L.P. Xxxxxx and Xxxxx, LLP prior to the effectiveness of the Registration Statement and also as of the Effective Time to the effect that (i) the Merger constitutes a reorganization under Section 368(a) of the Code, (ii) Target and Parent shall each be a party to that reorganization, and (iii) no gain or loss shall be recognized by a the Target stockholder who exchanges stockholders upon the receipt of Parent Common Shares in exchange for Target Common Shares solely for Parent Common Shares pursuant to the Merger except for any gain or loss recognized with respect to any cash received in lieu of fractional share interests, (iv) with respect to a Target shareholder who exchanges Target Common Shares for Parent Common Shares and cash, gain realized (if any), but not loss, will be recognized on the exchange, but only to the extent such gain does not exceed the amount of cash received (excluding any cash received in lieu of fractional Parent Common Shares), and (v) with respect to a Target shareholder who exchanges Target Common Shares solely for cash, gain or loss will be recognized equal to the difference, if any, between the amount of cash received and the tax basis of exchanged Target Common Shares; provided, however, that if counsel to Target shall not render such opinion, this condition shall nonetheless be deemed satisfied if counsel to Parent shall render such opinion to Target; provided further, that in rendering such opinion, such counsel may rely upon the Parent Tax Certificate and the Target Tax Certificate. (e) Each consent, waiver and approval set forth in Sections 5.4(b) and 5.4(c) of the Parent Disclosure Schedule must have been obtained, and Parent must have provided Target shall with copies thereof. (f) Target must have received a “cold comfort” letter from Ernst & Young PricewaterhouseCoopers LLP in the form contemplated by Section 7.14(c7.14(b). (g) Prior to or simultaneous with the Effective Time, all indebtedness under Target’s credit facility shall have been repaid or refinanced, or Target shall have received consent under such credit facility to enter into this Agreement.

Conditions to the Obligations of Target. The obligation of Target to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) Parent must have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Parent contained in this Agreement, to the extent qualified with respect to materiality must be true and correct in all respects, and to the extent not so qualified must be true and correct in all material respects, in each case as of the date hereof and at and as of the Effective Time as if made at and as of such time, except as expressly contemplated by the Parent Disclosure Letter Schedule or this Agreement and except that the accuracy of representations and warranties that by their terms speak as of the date hereof or some other date shall be determined as of such date, and Target must have received a certificate of the Chief Executive Officer and Chief Financial Officer of Parent as to the satisfaction of this condition. (b) From the date hereof through the Effective Time, there must not have occurred any change in the change, event, circumstance, condition, development or occurrence with respect to Parent or its financial condition, business, business or operations or prospects of Parent that would constitute a Parent Material Adverse Effect. (c) Parent must have delivered to its counsel, Target and Target’s counsel a certificate certificate, substantially in the form attached hereto as Exhibit 8.3(c), signed on behalf of Parent by a duly authorized officer of Parent Parent, certifying the representations substantially in necessary for counsel to opine that the form set forth in Merger will qualify as a reorganization under Section 368(a) of the Parent Tax Certificate attached as Exhibit 8.3(c) (the “Parent Tax Certificate”)Code. (d) Target must shall have received an opinion from Vxxxxx Xxxxxxxx & Exxxxx L.L.P. prior Knight LLP, tax counsel to Target, on the effectiveness basis of the Registration Statement representations and also warranties set forth or referred to in such opinion, dated as of the Effective Time Closing Date, to the effect that (i) the Merger constitutes will be treated for federal income tax purposes as a reorganization under “reorganization” within the meaning of Section 368(a) of the Code, Code and (ii) Target and Parent shall will each be a “party to that the reorganization, (iii) no gain or loss shall be recognized by a Target stockholder who exchanges Target Common Shares solely for Parent Common Shares except for any gain or loss recognized with respect to any cash received in lieu ” within the meaning of fractional share interests, (iv) with respect to a Target shareholder who exchanges Target Common Shares for Parent Common Shares and cash, gain realized (if any), but not loss, will be recognized on Section 368 of the exchange, but only to the extent such gain does not exceed the amount of cash received (excluding any cash received in lieu of fractional Parent Common Shares), and (v) with respect to a Target shareholder who exchanges Target Common Shares solely for cash, gain or loss will be recognized equal to the difference, if any, between the amount of cash received and the tax basis of exchanged Target Common Shares; provided, however, that if counsel to Target shall not render such opinion, this condition shall nonetheless be deemed satisfied if counsel to Parent shall render such opinion to Target; provided further, that in Code. In rendering such opinion, such counsel may shall be entitled to receive and rely upon the Parent Tax Certificate representations, warranties and the covenants of officers of Parent, Merger Sub, Target Tax Certificateor others reasonably requested by such counsel. (e) Each consent, waiver and approval set forth in Sections 5.4(b) and 5.4(c) of the Parent Disclosure Schedule must have been obtained, and Parent must have provided Target shall and Target’s counsel with copies thereof. (f) Target must have received a “cold comfort” letter from Ernst & Young LLP UHY in the form contemplated by Section 7.14(c7.15(c). (g) The D&O Insurance tail coverage as described in Section 7.4(a)(iii) shall have been obtained and will be in effect upon Closing.