Common use of Closing of the Merger Agreement Clause in Contracts

Closing of the Merger Agreement. Capitalized terms used in this Section 1 but not otherwise defined in this Agreement shall have the definitions ascribed to such terms in the Merger Agreement. a. Simultaneously with the execution and delivery of this Agreement, (i) the Closing Escrow Agreement is being executed and delivered by the parties thereto, (ii) the Escrow Documents described under the heading “Merger Agreement Escrow Documents” on Schedule I thereto (“Merger Escrow Documents”) are being delivered by the parties thereto to the Closing Escrow Agent and (iii) the Initial Merger Consideration is being delivered to the Closing Escrow Agent. The parties hereto agree that, notwithstanding anything to the contrary contained in Article 6 of the Merger Agreement, all conditions to the Closing set forth in Article 6 of the Merger Agreement have been irrevocably and unconditionally satisfied for all purposes and that from and after the date hereof none of the obligations of the Merger Agreement Parties under the Merger Agreement, this Agreement or the Closing Escrow Agreement shall be subject to any of the conditions to closing set forth in Article 6 of the Merger Agreement or any other conditions except for the occurrence of the date October 15, 2007 or the earlier delivery of an Escrow Release Certificate. Notwithstanding anything to the contrary contained herein, nothing in this Agreement is intended to relieve the parties of their obligations to effect the transactions contemplated by the Merger Agreement and the Escrow Agreement on the Escrow Release Date, including the filing of the Certificates of Merger, as contemplated by Section 5 of the Escrow Agreement. b. The covenants and agreements set forth in the Merger Agreement shall continue in full force and effect until the Closing Escrow Release Date, and all covenants and agreement that survive the Closing (as defined in the Merger Agreement) shall thereafter continue to survive in accordance with their terms. For the avoidance of doubt it is acknowledged and agreed that the Merger Agreement Parties’ compliance with the covenants and agreements set forth in the Merger Agreement shall not constitute a condition to the obligations of any of the Merger Agreement Parties to consummate the transactions contemplated by the Merger Agreement, this Agreement or the Closing Escrow Agreement; provided, however, that notwithstanding anything to the contrary contained in this Section 1(b), no party hereby waives any right to any indemnity or damages to which it is entitled by reason of any other party’s failure to comply with any applicable provision of the Merger Agreement. c. Notwithstanding anything to the contrary in the Merger Agreement, any and all breaches of representations set forth in the Merger Agreement that (i) are caused solely by the delay of the delivery of the closing documentation under the Merger Agreement and the Securities Purchase Agreement, the filing of the Certificates of Merger, the delivery of the Initial Merger Consideration under the Merger Agreement and the Convertible Shares to be issued to the SPA Investors under the Securities Purchase Agreement until October 15, 2007 or an earlier date, pursuant to this Agreement and the Closing Escrow Agreement or (ii) that arise from a representation or warranty becoming inaccurate after the date hereof, are hereby irrevocably and unconditionally waived. d. The Merger Agreement Parties agree that the date October 7, 2007 contained in Section 7.1(b) of the Merger Agreement is extended until all distributions and other transactions contemplated by the Merger Agreement and the Closing Escrow Agreement have been completed on the Closing Escrow Release Date. e. The Closing Date under the Merger Agreement shall be deemed to be the Closing Escrow Release Date which shall (i) be the date on which the Certificates of Merger are filed pursuant to Section 5(a) of the Closing Escrow Agreement and (ii) occur no later than October 15, 2007. f. On the Closing Escrow Release Date, the Initial Merger Consideration shall be released from the escrow established pursuant to the Closing Escrow Agreement and the Closing Escrow Agent shall (i) deliver to the members of MHRx (A) the Initial Cash Merger Consideration (other than the Escrow Cash and subject to any tax withholdings permitted by the Merger Agreement and deductions for the payment of expenses or establishment of reserves as permitted by the Merger Agreement and directed by the Shareholder Representative) and (B) certificates evidencing the Initial Parent Shares (other than the Escrow Shares) registered in the names of the MHRx members, as required by, and in accordance with instructions provided by MHRx as contemplated by Section 2.9 of the Merger Agreement, and (ii) deposit the Escrow Cash and Escrow Shares (as such terms are defined in the Escrow Agreement) into the Escrow Fund as contemplated by the Merger Agreement. g. On the Closing Escrow Release Date, the Merger Escrow Documents shall be delivered by the Closing Escrow Agent to the Merger Agreement Parties entitled to receive such documents under the Closing Escrow Agreement, the Merger Agreement or such Merger Escrow Documents. Notwithstanding anything else to the contrary contained in such Merger Escrow Documents, the Merger Agreement, this Agreement and the Closing Escrow Agreement, each of the Merger Escrow Documents listed on Schedule I hereto shall be dated and effective upon such release on the Closing Escrow Release Date and all other Merger Escrow Documents shall be dated and effective as of the date hereof. h. On the Closing Escrow Release Date, all interest earned on the Escrow Cash (as such term is defined in the Closing Escrow Agreement) shall be delivered to MHRx and the Board of Directors of Parent shall be reconstituted as contemplated by the Shareholders Agreement.