Purchaser and Merger. Sub jointly and severally agree subject to the conditions of the Offer set forth in Exhibit A to the Merger Agreement and the other terms and conditions of the Merger Agreement, that (i) Merger Sub will commence the Offer within ten business days after the date of the Merger Agreement and (ii) Merger Sub will accept for payment, purchase and pay for, in accordance with the terms of the Offer and the Merger Agreement, all shares of Common Stock validly tendered pursuant to the Offer.
Purchaser and Merger. Sub shall keep the Company reasonably informed with respect to the Financing (including without limitation the progress of the Rights Issue) and the EGM. If Purchaser or Merger Sub shall have Knowledge of any fact or event which will or may prevent the conditions set forth in Section 6.1(f) from being satisfied or prevent the Financing from being obtained timely as required herein, Purchaser shall promptly disclose the same to the Company.
Purchaser and Merger. Sub acknowledge that the shares of Enpath Common Stock which Merger Sub may acquire upon exercise of the 90% Top-Up Option will not be registered under the 1933 Act and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Purchaser and Merger Sub represent and warrant to Enpath that Merger Sub is, or will be upon the purchase of the 90% Top-Up Option Shares, an "accredited investor", as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub agrees that the 90% Top-Up Option and the 90% Top-Up Option Shares to be acquired upon exercise of the 90% Top-Up Option are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act). Any certificates evidencing 90% Top-Up Option Shares may include any legends required by applicable securities Laws.
Purchaser and Merger. Sub each acknowledge and agree that, except for the representations and warranties expressly set forth in Article III, (i) the Company does not make, and has not made, any representations or warranties relating to itself or its business or otherwise in connection with the Merger, and Purchaser and Merger Sub are not relying on any representation or warranty except for those expressly set forth in this Agreement, (ii) no Person has been authorized by the Company to make any representation or warranty relating to itself or its business or otherwise in connection with the Merger, and if made, such representation or warranty must not be relied upon by Purchaser or Merger Sub as having been authorized by such party and (iii) any estimates, projections, predictions, data, financial information, memoranda, presentations or any other materials or information provided or addressed to Purchaser, Merger Sub or any of their representatives are not and shall not be deemed to be or include representations or warranties unless any such materials or information is the subject of any express representation or warranty set forth in Article III of this Agreement.
Purchaser and Merger. Sub agree that all rights to indemnification and exculpation (including the advancement of expenses) from liabilities for acts or omissions occurring at or prior to the Effective Time (including with respect to the transactions contemplated hereby) now existing in favor of the current or former directors or officers of the Company or its Subsidiaries as provided in the Company's Certificate of Incorporation and By-Laws or other organizational documents of a Subsidiary, or in any written indemnification agreement with the officers, directors or agents of the Company or its Subsidiaries, shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms, and Purchaser shall cause the Surviving Corporation to honor all such rights. The Certificate of Incorporation and By-Laws of the Surviving Corporation will contain provisions with respect to exculpation and indemnification (including the advancement of expenses) that are at least as favorable to the current or former directors, officers, employees and agents of the Company as those contained in the Certificate of Incorporation and By-Laws of the Company as in effect on the date hereof, which provisions will not be amended, repealed or otherwise modified for a period of seven years after the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, immediately prior to the Effective Time, were directors, officers, employees or agents of the Company, unless such modification is required by law.
Purchaser and Merger. Sub shall have performed in all --------- material respects all of their obligations hereunder required to be performed by them at or prior to the Effective Time.
Purchaser and Merger. Sub shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by them prior to or on the Closing Date; provided that with respect to agreements, covenants and conditions that are qualified by materiality, Purchaser and Merger Sub shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
Purchaser and Merger. Sub acknowledge that neither the Company nor any other Person has made, and neither Purchaser nor Merger Sub has relied upon, any representation or warranty, express or implied, of any kind including, without limitation, any representation or warranty as to the accuracy or completeness of any information, written or oral, regarding the Company delivered or made available to Purchaser or Merger Sub and any of their respective Representatives, in each case except as expressly set forth in Article IV (as modified by the Company Disclosure Schedule), and neither the Company, its directors, officers, employees, agents or other Representatives, nor any other Person shall be subject to any liability to Purchaser or Merger Sub or any other Person resulting from the Company’s delivering or making available, or Purchaser or Merger Sub’s use of, such information, or any information, documents or material made available to Purchaser or Merger Sub, including in the virtual data room, management presentations (formal or informal) or in any other form in connection with the transactions contemplated by this Agreement. Without limiting the foregoing, the Company makes no representation or warranty to Purchaser or Merger Sub with respect to, and neither Purchaser nor Merger Sub has relied upon, any projections, forecasts or other estimates, plans or budgets of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows (or any component thereof) or future financial condition (or any component thereof) of the Company or the future business, operations or affairs of the Company heretofore or hereafter delivered to or made available to Purchaser, Merger Sub or their respective Representatives or Affiliates.
Purchaser and Merger. Sub hereby acknowledge that the Indemnitees may have certain rights to indemnification, advancement of expenses and/or insurance provided by ACAS and its Affiliates (other than the Company and Subsidiaries) (collectively, the “ACAS Indemnitors”). Purchaser and Merger Sub hereby agree that from and after the Closing Date (i) the Surviving Corporation, the Subsidiaries and any of their successors or assigns are the indemnitors of first resort (i.e., its obligations to Indemnitees are primary and any obligation of the ACAS Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Indemnitee are secondary), (ii) the Surviving Corporation, the Subsidiaries and any of their successors or assigns shall be required to advance the full amount of expenses incurred by any Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the certificate of incorporation or by-laws of the Surviving Corporation or any Subsidiary (or any other agreement between the Surviving Corporation or any Subsidiary and any Indemnitee), without regard to any rights an Indemnitee may have against the ACAS Indemnitors and (iii) it irrevocably waives, relinquishes and releases the ACAS Indemnitors from any and all claims against the ACAS Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Purchaser and Merger Sub further agree that no advancement or payment by the ACAS Indemnitors on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from the Surviving Corporation shall affect the foregoing and the ACAS Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of an Indemnitee against the Surviving Corporation. Purchaser and Merger Sub agree that the ACAS Indemnitors are express third party beneficiaries of the terms of this Section 8.7(h). (i) Notwithstanding anything contained herein to the contrary, this Section 8.7 shall not override or otherwise impair a Purchaser Indemnified Party’s right to seek indemnification in accordance with Article X, and, if any Purchaser Indemnified Party shall be entitled to indemnification under Article X (without regard to the limitations contained in Article X) with respect ...
Purchaser and Merger. Subsidiary jointly and severally agree to indemnify and hold harmless the Target Corporation and the XCD Shareholders from, against and in respect of any and all Liabilities, losses, costs and expenses (including reasonable attorneys' fees and costs incurred before and at trial, at all tribunal levels, whether or not suit is instituted, and in establishing this right to indemnification) asserted against or suffered or incurred by the Target Corporation or any of the XCD Shareholders to the extent caused by or resulting from a breach by Purchaser or Merger Subsidiary of any of its representations, warranties, covenants or obligations herein contained.
