Common use of Additional Conditions to Obligation of the Company to Effect the Merger Clause in Contracts

Additional Conditions to Obligation of the Company to Effect the Merger. The obligations of the Company to consummate the Merger shall also be subject to the satisfaction at or prior to the Effective Time of the following conditions, any and all of which may be waived in whole or in part by the Company: (a) The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects as of the date of the Agreement and as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date. (b) Parent and Merger Sub shall have performed and complied in all material respects with all agreements and covenants required to be performed or complied with by them on or before the Effective Time. (c) Parent and Merger Sub shall have delivered an officers' certificate, duly executed by Parent's Chief Executive Officer and Chief Financial Officer, stating that the conditions set forth in Sections 7.3(a) and (b) above have been satisfied. (d) The Company shall have received from Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, counsel to the Company, on the date on which the Form S-4 is filed with the SEC and on the Closing Date, an opinion, in each case dated as of such respective dates and to the effect that: (i) the Merger will qualify for U.S. Federal income tax purposes as a "reorganization" within the meaning of Section 368(a) of the Code and (ii) Parent, Merger Sub and the Company will each be a "party to the reorganization" within the meaning of Section 368(b) of the Code; provided that if Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP does not render such opinion to the Company, this condition shall nonetheless be deemed satisfied if Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP renders such opinion to the Company (it being agreed that the Company and Parent shall each provide reasonable cooperation to Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, as the case may be, to enable them to render such opinion). In rendering such opinion, Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, as the case may be, shall be entitled to require and rely upon letters acceptable to them and customary for transactions of this type setting forth factual statements and representations regarding the facts in existence at the applicable time, including from officers from Parent, Merger Sub and the Company, and upon assumptions regarding the facts in existence at the applicable time.

Additional Conditions to Obligation of the Company to Effect the Merger. The obligations Unless waived by the Company, the obligation of the Company to consummate effect the Merger shall also be subject to the satisfaction fulfillment at or prior to the Effective Time Closing of the following additional conditions, any and all of which may be waived in whole or in part by the Company: (a) The Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Merger Sub set forth Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date of the Agreement made and on and as of the Closing Date Date, except for those representations and warranties which address matters only as though of a particular date (which shall remain true and correct as of such date), as if made on at and as of such date, and the Company shall have received a Certificate of the Chairman of the Board and Chief Executive Officer and the President or a Vice President of Parent, in form and substance reasonably satisfactory to the Company, to that effect; (b) since the date hereof, there shall have been no changes that constitute, and no event or events shall have occurred which have resulted in or constitute, a Parent Material Adverse Effect, taken as a whole; (c) all waivers, consents, orders, authorizations, and approvals required to be obtained, and all filings required to be made by Parent and Subsidiary for the authorization, execution and delivery of this Agreement and the consummation by Parent and Subsidiary of the transactions contemplated hereby shall have been obtained and made by Parent and Subsidiary, except where the failure to obtain the waivers, consents, orders, authorizations or approvals required to be obtained or any filings required to be made would not have a Parent Material Adverse Effect, taken as a whole; (d) Parent shall have delivered to the Company the following: (i) The Merger Consideration as specified in Section 4.1, above; (ii) A certificate from the Secretary of Parent, in a form satisfactory to the Company, setting forth the resolutions of the Board of Directors of Parent authorizing the execution of this Agreement and all agreements, documents and instruments to be executed in connection herewith and the taking of any and all actions deemed necessary or advisable to consummate the transactions contemplated herein; (iii) The certificate of Parent required to be delivered pursuant to Section 9.2(a), above; and (iv) An opinion from the law firm Godfrey & Kahn, ▇.▇., indepen▇▇▇▇ counsel to Parent and Subsidiary, dated the Closing Date, except to the extent covering such representations and warranties expressly relate to an earlier date, in which case matters as of such earlier date. (b) Parent and Merger Sub shall have performed and complied in all material respects with all agreements and covenants required to be performed or complied with by them on or before the Effective Time. (c) Parent and Merger Sub shall have delivered an officers' certificate, duly executed by Parent's Chief Executive Officer and Chief Financial Officer, stating that the conditions set forth in Sections 7.3(a) and (b) above have been satisfied. (d) The Company shall have received from Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, counsel to the Company, on the date on which the Form S-4 is filed with the SEC and on the Closing Date, an opinion, in each case dated as of such respective dates and to the effect that: (i) the Merger will qualify for U.S. Federal income tax purposes as a "reorganization" within the meaning of Section 368(a) of the Code and (ii) Parent, Merger Sub and the Company will each be a "party to the reorganization" within the meaning of Section 368(b) of the Code; provided that if Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP does not render such opinion to the Company, this condition shall nonetheless be deemed satisfied if Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP renders such opinion to the Company (it being agreed that the Company and Parent shall each provide reasonable cooperation to Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, as the case may be, to enable them to render such opinion). In rendering such opinion, Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, as the case may be, shall be entitled to require and rely upon letters acceptable to them and are customary for transactions of this type setting forth factual statements nature in form and representations regarding content acceptable to the facts in existence at Company and Godfrey & Kahn, S.C. (e) no governmental authority, foreign or domestic, shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the applicable timevalue of the Merger to the Company's shareholders. In the event that any of the foregoing conditions to Closing shall not have been satisfied, including from officers from Parent, Merger Sub and the Company may elect to (i) terminate this Agreement without liability to the Company, or (ii) consummate the transactions contemplated herein despite such failure. Regardless of whether the Company elects to terminate this Agreement or consummate the transactions described herein, if such failure shall be as a result of a breach of any provision of this Agreement by Parent, including, without limitation, Parent's failure to execute and/or deliver any item described pursuant to Section 9.2(d), above, the Company (or its shareholders) may seek appropriate remedies for any and upon assumptions regarding all damages, costs and expenses incurred by the facts in existence at the applicable timeCompany (or its shareholders) by reason of such breach including, without limitation, indemnification pursuant to Article X, below.

Additional Conditions to Obligation of the Company to Effect the Merger. The obligations of the Company to consummate the Merger shall also be subject to the satisfaction at or prior to the Effective Time of the following conditions, any and all of which may be waived in whole or in part by the Company: (a) The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects as of the date of the Agreement and as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date. (b) Parent and Merger Sub shall have performed and complied in all material respects with all agreements and covenants required to be performed or complied with by them on or before the Effective Time. (c) Parent and Merger Sub shall have delivered an officers' certificate, duly executed by Parent's Chief Executive Officer and Chief Financial Officer, stating that the conditions set forth in Sections 7.3(a) and (b) above have been satisfied. (d) The Company shall have received from Paul, Hastings, J▇▇▇▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to the Company, on the date on which the Form S-4 is filed with the SEC and on the Closing Date, an opinion, in each case dated as of such respective dates and to the effect that: (i) the Merger will qualify for U.S. Federal income tax purposes as a "reorganization" within the meaning of Section 368(a) of the Code and (ii) Parent, Merger Sub and the Company will each be a "party to the reorganization" within the meaning of Section 368(b) of the Code; provided that if Paul, Hastings, J▇▇▇▇▇▇▇▇ & W▇▇▇▇▇▇ LLP does not render such opinion to the Company, this condition shall nonetheless be deemed satisfied if Skadden, Arps, Slate, M▇▇▇▇▇▇▇ & F▇▇▇▇ LLP renders such opinion to the Company (it being agreed that the Company and Parent shall each provide reasonable cooperation to Skadden, Arps, Slate, M▇▇▇▇▇▇▇ & F▇▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, as the case may be, to enable them to render such opinion). In rendering such opinion, Skadden, Arps, Slate, M▇▇▇▇▇▇▇ & F▇▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, as the case may be, shall be entitled to require and rely upon letters acceptable to them and customary for transactions of this type setting forth factual statements and representations regarding the facts in existence at the applicable time, including from officers from Parent, Merger Sub and the Company, and upon assumptions regarding the facts in existence at the applicable time.

Additional Conditions to Obligation of the Company to Effect the Merger. The obligations obligation of the Company to consummate effect the Merger shall also be subject to the satisfaction waiver by the Company or the fulfillment at or prior to the Effective Time Closing Date of the following conditions, any and all of which may be waived in whole or in part by the Company: (a) The representations Each representation and warranties warranty of Parent and Merger Sub set forth contained in this Agreement that is qualified as to materiality shall have been true and correct (i) as of the date of this Agreement, and (ii) subject to the provisions of the penultimate sentence of Section 6.4, on and as of the Closing Date with the same force and effect as if made on the Closing Date, except to the extent that such representations and warranties speak as of an earlier date, in which case such representations and warranties shall be true and correct as of such date. Each representation and warranty of Parent and Merger Sub contained in this Agreement that is not qualified as to materiality shall have been true and correct (y) in all material respects as of the date of this Agreement and (z) subject to the provisions of the penultimate sentence of Section 6.4, in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, except to the extent that such representations and warranties speak as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of the date of the Agreement and as of the Closing Date as though made on the Closing Date, except such date. The Company shall have received a certificate with respect to the extent foregoing signed on behalf of Parent and Merger Sub by an authorized officer of Parent and Merger Sub (“Parent Closing Certificate”). Notwithstanding the foregoing, the Company shall not be entitled to assert inaccuracy or breach of representation or warranty by Parent or Merger Sub as a failure of condition to Closing under this Section 7.2(a) unless the individual or aggregate impact of all such representations inaccuracies and warranties expressly relate breaches by Parent and Merger Sub (without giving effect for these purposes to an earlier date, in which case as of such earlier dateany materiality or Material Adverse Effect qualifiers) would reasonably be expected to have a Material Adverse Effect on Parent. (b) Parent and Merger Sub shall have performed and complied in all material respects with all of their respective agreements and covenants contained in this Agreement required to be performed or complied with by them on or before prior to the Effective TimeClosing. (c) The Company shall have been furnished with an opinion of McAfee & T▇▇▇ A Professional Corporation, counsel to Parent, in substantially the form attached hereto as Exhibit H. (d) Parent shall have executed the Registration Rights Agreement for delivery at the Closing. (e) Parent and the Escrow Agent shall have executed the Escrow Agreement for delivery at the Closing. (f) The Parent Stockholder Consent and the Merger Sub Stockholder Consent shall have been adopted in accordance with the Parent Charter Documents and Merger Sub Charter Documents, respectively, and the DGCL, on or before the close of business on November 9, 2007, and the certificate required by clause (iii) of Section 6.15(a) shall have been delivered to the Company with respect to the Parent Stockholder Consent. (g) Each of Parent and Merger Sub shall have delivered an officers' certificate, duly executed by Parent's Chief Executive Officer and Chief Financial Officer, stating that the conditions set forth in Sections 7.3(a) and (b) above have been satisfied. (d) The Company shall have received from Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, counsel to the Company, on the date on which the Form S-4 is filed with the SEC and on the Closing Date, an opinion, in each case dated as Company a copy of such respective dates and to the effect that: (i) the Merger will qualify for U.S. Federal income tax purposes as a "reorganization" within resolutions adopted by its board of directors authorizing the meaning execution, delivery and performance of Section 368(a) this Agreement and the consummation of all of the Code transactions contemplated hereby, including the Merger, and (ii) Parent, a certificate executed on behalf of each of Parent and Merger Sub by its corporate secretary and dated the Company will each be a "party to the reorganization" within the meaning of Section 368(b) of the Code; provided that if Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP does not render such opinion to the Company, this condition shall nonetheless be deemed satisfied if Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP renders such opinion Closing Date certifying to the Company that (it being agreed that A) the Company resolutions described at (i) were duly adopted and have not been amended or rescinded and (B) the Merger Sub Stockholder Consent and the Parent Stockholder Consent were duly obtained and have not been amended or rescinded. (h) Parent shall each provide reasonable cooperation have mailed the Information Statement (including any amendments thereto) to Skaddenits stockholders not less than twenty (20) days prior to the Closing Date. (i) Parent is ready, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, willing and able to satisfy its obligations at Closing as the case may be, to enable them to render such opinion). In rendering such opinion, Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, as the case may be, shall be entitled to require and rely upon letters acceptable to them and customary for transactions of this type setting forth factual statements and representations regarding the facts set out in existence at the applicable time, including from officers from Parent, Merger Sub and the Company, and upon assumptions regarding the facts in existence at the applicable timeSection 1.6.

Additional Conditions to Obligation of the Company to Effect the Merger. The obligations Unless waived by the Company in writing, the obligation of the Company to consummate effect the Merger shall also be subject to the satisfaction fulfillment at or prior to the Effective Time Closing of the following additional conditions, any and all of which may be waived in whole or in part by the Company: (a) The Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Merger Sub set forth Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date of the Agreement made and on and as of the Closing Date as though made on the Closing Date, except to the extent such for those representations and warranties expressly relate to an earlier date, in which case address matters only as of a particular date (which shall remain true and correct as of such earlier date.), as if made at and as of such date, and the Company shall have received a Certificate of Parent signed by an authorized officer of Parent, in form and substance reasonably satisfactory to the Company, to that effect; (b) Parent all waivers, consents, orders, authorizations, and Merger Sub shall have performed and complied in all material respects with all agreements and covenants approvals required to be performed obtained, and all filings required to be made by Parent and/or Subsidiary for the authorization, execution and delivery of this Agreement and the consummation by Parent and Subsidiary of the transactions contemplated hereby shall have been obtained and made by Parent and Subsidiary, including, without limitation Parent Required Statutory Approvals, except where the failure to obtain the waivers, consents, orders, authorizations or complied with by them on approvals required to be obtained or before the Effective Time.any filings required to be made would not have a Parent Material Adverse Effect, taken as a whole; (c) Parent and Merger Sub shall have delivered an officers' certificateor cause to be delivered to the Company (or, duly executed by Parent's Chief Executive Officer in the case of clause (i), below, to the Paying Agent and Chief Financial Officerin the case of clause (ii), stating that below, to the conditions set forth in Sections 7.3(aEscrow Agent) and (b) above have been satisfied.the following: (di) The Company shall have received Remaining Redemption Payment, on behalf of the Surviving Corporation, as specified in Section 2.3, above, and the Merger Payment Fund as specified in Section 4.4(b), above; (ii) The Adjustment Escrow and the Indemnity Escrow as specified in Section 4.4(b), above; (iii) A certificate from Paulan authorized officer of Parent, Hastingsin a form satisfactory to the Company, Jsetting forth the resolutions of the Board of Directors of Parent authorizing the execution of this Agreement and all agreements, documents and instruments to be executed in connection herewith and the taking of any and all actions deemed necessary or advisable to consummate the transactions contemplated herein; (iv) The certificate of Parent required to be delivered pursuant to Section 9.2(a), above; and (v) A legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & W▇▇▇▇▇ LLP, counsel to the Company, on the date on which the Form S-4 is filed with the SEC and on dated the Closing Date, an opinion, in each case dated covering such matters as of such respective dates and to the effect that: (i) the Merger will qualify for U.S. Federal income tax purposes as a "reorganization" within the meaning of Section 368(a) of the Code and (ii) Parent, Merger Sub and the Company will each be a "party to the reorganization" within the meaning of Section 368(b) of the Code; provided that if Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP does not render such opinion to the Company, this condition shall nonetheless be deemed satisfied if Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP renders such opinion to the Company (it being agreed that the Company and Parent shall each provide reasonable cooperation to Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, as the case may be, to enable them to render such opinion). In rendering such opinion, Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, as the case may be, shall be entitled to require and rely upon letters acceptable to them and are customary for transactions of this type setting forth factual statements nature in form and representations regarding content acceptable to the facts Company and its counsel in existence at the applicable timeform attached hereto as Exhibit 9.2(c)(v); (vi) A certificate from an authorized officer of Subsidiary, including from officers from Parent, Merger Sub and in a form satisfactory to the Company, setting forth the resolutions of the Board of Directors of Subsidiary and upon assumptions regarding a consent of the facts sole shareholder of Subsidiary authorizing the execution of this Agreement and all agreements, documents and instruments to be executed in existence at connection herewith and the taking of any and all actions deemed necessary or advisable to consummate the transactions contemplated herein; (vii) The Escrow Agreement, duly executed by Parent and the Escrow Agent; and (viii) The Paying Agent Agreement, duly executed by Parent and the Paying Agent. (d) No Governmental Authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value of the Merger to the Company Common Shareholders. (e) The principal terms of the Merger shall have been duly approved by the Company Common Shareholders in accordance with applicable timeLaw.