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 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 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 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).
Purchaser and Merger. Sub acknowledge that they and their respective representatives have been permitted access to the books and records, facilities, equipment, tax returns, contracts, insurance policies (or summaries thereof) and other properties and assets of the Company that they and their respective representatives have desired or requested to see or review, and that they and their respective representatives have had a full opportunity to meet with the officers and employees of the Company to discuss the business of the Company. Purchaser and Merger Sub acknowledge that none of the Company, the Stockholders’ Representative or any other Person has made any representation or warranty, express or implied, written or oral, as to the accuracy or completeness of any information that the Company furnished or made available to Purchaser, Merger Sub and their respective representatives, except for representations by the Company expressly set forth herein or in the certificate to be delivered pursuant to this Agreement, and neither the Company nor any other person shall have or be subject to any liability, except in the case of common law fraud, to Purchaser or Merger Sub, or any other Person (including in contract or tort, at law or in equity, under federal or state securities Laws or otherwise) resulting from Purchaser’s or Merger Sub’s use of any information, documents or material made available to Purchaser or Merger Sub (or any omissions therefrom) in any “data rooms,” management presentations, due diligence or in any other form in expectation of the transactions contemplated hereby. Purchaser and Merger Sub acknowledge that, should the Closing occur, Purchaser and Merger Sub shall acquire the Company and the Company’s Subsidiaries without any representation or warranty as to merchantability or fitness for any particular purpose of their respective assets, in an “as is” condition and on a “where is” basis, except as otherwise expressly represented or warranted herein or pursuant to the certificate to be delivered pursuant this Agreement; provided, however, that nothing in this Section 4.19 is intended to limit or modify the representations and warranties contained in ARTICLE III or pursuant to the certificate to be delivered pursuant to ARTICLE VII. Purchaser and Merger Sub acknowledge that, except for the representations and warranties of the Company contained in ARTICLE III or pursuant to the certificate to be delivered pursuant to ARTICLE VII, neither the Company nor any othe...
Purchaser and Merger. Sub acknowledge that they continue to be bound by that certain non-disclosure agreement by and between the Purchaser and the Company dated July 24, 2009; provided, however, that the Company hereby waives the provisions of such non-disclosure agreement with respect to any disclosures required under applicable securities regulations or that the Purchaser may reasonably deem appropriate for the purpose of complying with applicable securities regulations, it being acknowledged and agreed that the Purchaser shall be obligated to file a copy of this Agreement with the United States Securities and Exchange Commission. If this Agreement is terminated, and if requested in writing by the Company, the Purchaser and the Merger Sub will cause to be delivered to the Company all materials obtained by the Purchaser or the Merger Sub from or on behalf of the Company or its Subsidiaries, whether obtained before or after the date of this Agreement.
Purchaser and Merger. Sub (on behalf of itself and the Surviving Corporation) hereby covenant that (i) neither Purchaser nor the Surviving Corporation shall amend, alter or terminate the Year End Performance Bonus Program in a manner adverse to the participants in such program, and (ii) the Surviving Corporation shall pay bonuses to management in December 2005 (or at such other time as Purchaser customarily pays bonuses to its employees) in amounts that at a minimum correspond with those set forth by the Year End Performance Bonus Program. In the event any participant in the Year End Performance Bonus Program is terminated from employment prior to December 31, 2005, other than for cause, such participant shall be entitled to receive a pro rata share of the bonus that such participant would have otherwise been entitled to receive had such participant’s employment not been terminated prior to December 31, 2005, but only if the program’s applicable EBITDA target is met and the critical operating tasks established for such participant (as agreed to between the applicable participant and his/her supervisor) have been met. The determination regarding such participant’s eligibility for a pro rata share of his or her bonus and payment of such bonus, if any, shall be made at the same time as the determination and payment with respect to all other participants in the program are made.
Purchaser and Merger. Sub covenant and agree that, from and after Closing, it shall cause Xxxxx to indemnify, hold harmless and advance expenses to each Person who is or was a director and/or officer of Xxxxx, a member of the ESOP Committee or a trustees or other fiduciaries of the Trust or the Xxxxx ESOP, with respect to any Proceeding, Liability or claim arising out of or relating to such Person serving or having served in any such capacity prior to the Effective Time, to the extent that such Person is entitled to such indemnification, hold harmless and expense advances pursuant to and in accordance with (i) the provisions of the articles of incorporation or bylaws of Xxxxx as in effect at the Closing, (ii) Nevada law, (iii) any written indemnification agreement disclosed in the Xxxxx Disclosure Schedule, and/or (iv) the provisions of the Xxxxx ESOP or the Trust as in effect at the Closing.
