Conditions to Obligations of Purchaser and Merger Sub. The obligations of PURCHASER and MERGER SUB to perform this Agreement and consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction of the following conditions, unless waived by PURCHASER and MERGER SUB pursuant to Section 12.6(a) of this Agreement: (a) The representations and warranties of TARGET set forth or referred to in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time with the same effect as though all such representations and warranties had been made on and as of the Effective Time (provided that representations and warranties which are confined to a specified date shall speak only as of such date), except (i) as expressly contemplated by this Agreement, or (ii) for representations and warranties (other than the representations and warranties set forth in Section 4.3 of this Agreement, which shall be true in all respects) the inaccuracies of which relate to matters that are not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on TARGET. (b) Each and all of the agreements and covenants of TARGET to be performed and complied with pursuant to this Agreement and the other agreements contemplated hereby prior to the Effective Time shall have been duly performed and complied with in all material respects. (c) TARGET shall have delivered to PURCHASER (i) a certificate, dated as of the Effective Time and signed on its behalf by its chief executive officer, to the effect that the conditions of its obligations set forth in Sections 9.2(a) and 9.2(b) of this Agreement have been satisfied in all material respects, and (ii) certified copies of resolutions duly adopted by TARGET's Board of Directors and stockholders evidencing the taking of all corporate action necessary to authorize the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, all in such reasonable detail as PURCHASER and its counsel shall reasonably request. (d) TARGET shall have delivered to PURCHASER an opinion of Mill▇▇ & ▇art▇▇, ▇▇P, counsel to TARGET, in form and substance reasonably acceptable to PURCHASER. (e) TARGET shall have amended its Articles of Incorporation to provide that the Merger shall not be deemed a dissolution, liquidation or winding up of the TARGET. (f) no proceeding or lawsuit shall have been commenced by any Person for the purpose of obtaining any injunction, writ or preliminary restraining order to the effect that the Merger may not be consummated as provided herein. (g) The holders of TARGET Capital Stock that represent all the outstanding shares of TARGET Preferred Stock and TARGET Common Stock shall have either approved the Merger or delivered to PURCHASER irrevocable waivers of their right to demand payment for their shares in accordance with Sections 14-2-1302 and 14-2-1321 of the OCGA, which waivers shall be acceptable as to form to PURCHASER. (h) Each of the holders of the Outstanding TARGET Shares shall have delivered to the PURCHASER a fully-executed copy of the Investor Representation in substantially the form of Exhibit 2 hereto and a counterpart signature page to the Registration Rights Agreement in substantially the form of Exhibit 3 hereto (the "Registration Rights Agreement"). (i) All TARGET Options outstanding at the Effective Time shall be cancelled as provided in Section 8.10 hereof. (j) Each TARGET Principal shall have delivered to PURCHASER a fully executed copy of a Non-Competition Agreement. (k) All shares of TARGET Preferred Stock shall have been converted to TARGET Common Stock. (l) That certain Registration Rights Agreement between TARGET and marchFIRST, Inc., a Delaware corporation ("marchFIRST"), dated September 22, 2000, and that certain Stockholders Agreement between TARGET and marchFIRST dated September 22, 2000 shall have been terminated.
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Conditions to Obligations of Purchaser and Merger Sub. The obligations of PURCHASER and MERGER SUB to perform this Agreement and consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction of the following conditions, unless waived by PURCHASER and MERGER SUB pursuant to Section 12.6(a13.6(a) of this Agreementhereof:
(a) The representations and warranties of TARGET set forth or referred to in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time with the same effect as though all such representations and warranties had been made on and as of the Effective Time (provided that representations and warranties which are confined to a specified date shall speak only as of such date), except (i) as expressly contemplated by this Agreement, or (ii) for representations and warranties (other than the representations and warranties set forth in Section 4.3 of this Agreementhereof, which shall be true in all respects) the inaccuracies of which relate to matters that are not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on TARGET; provided that TARGET shall update the representations and warranties set forth in (A) Section 4.3(a) hereof to give effect to the issuance of convertible promissory notes to holders, as of the date hereof, of capital stock of TARGET and to provide the aggregate liquidation preference for each series of the TARGET Preferred Stock immediately prior to the Closing; (B) Section 4.3(d) hereof to provide a complete and accurate list of TARGET stockholders immediately prior to the Closing, including the number of shares, series and class of the TARGET Capital stock held by each such stockholder; and (C) Section 4.15 hereof to reflect the status as of the Closing of legal proceedings previously disclosed in the TARGET Disclosure Letter.
(b) Each and all of the agreements and covenants of TARGET to be performed and complied with pursuant to this Agreement and the other agreements contemplated hereby prior to the Effective Time shall have been duly performed and complied with in all material respects.
(c) If the Closing shall not have been consummated on or prior to April 6, 2007, TARGET shall have delivered to PURCHASER (i) a certificatean updated Pro Forma Balance Sheet, dated as of the Effective Time and signed on its behalf contemplated by its chief executive officer, to the effect that the conditions of its obligations set forth in Sections 9.2(a) and 9.2(b) of this Agreement have been satisfied in all material respects, and (ii) certified copies of resolutions duly adopted by TARGET's Board of Directors and stockholders evidencing the taking of all corporate action necessary to authorize the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, all in such reasonable detail as PURCHASER and its counsel shall reasonably requestSection 3.10(a).
(d) TARGET shall have delivered to PURCHASER an opinion of Mill▇▇ & ▇art▇▇, ▇▇P, counsel to TARGET, in form and substance reasonably acceptable to PURCHASER.
(e) TARGET shall have amended its Articles of Incorporation to provide that the Merger shall not be deemed a dissolution, liquidation or winding up of the TARGET.
(f) no No proceeding or lawsuit shall have been commenced by any Person for the purpose of obtaining any injunction, writ or preliminary restraining order to the effect that the Merger may not be consummated as provided herein.
(ge) The holders of TARGET Capital Stock that represent all the outstanding shares of TARGET Preferred Stock and TARGET Common Stock shall have either approved the Merger or delivered to PURCHASER irrevocable waivers of their right to demand payment for their shares in accordance with Sections 14-2-1302 and 14-2-1321 of the OCGA, which waivers shall be acceptable as to form to PURCHASER.
(h) Each of the holders of the Outstanding TARGET Shares shall have delivered to the PURCHASER a fully-executed copy of the Investor Representation in substantially the form of Exhibit 2 hereto and a counterpart signature page to the Registration Rights Agreement in substantially the form of Exhibit 3 hereto (the "Registration Rights Agreement").
(i) All TARGET Options outstanding at the Effective Time shall be cancelled as provided in Section 8.10 hereof.
(j) Each TARGET Principal shall have delivered to PURCHASER a fully executed copy each of a Non-Competition Agreementthe documents, agreement, certificates and other instruments set forth in Section 10.1 hereof.
(kf) All shares TARGET shall have issued convertible promissory notes with an aggregate principal amount of TARGET Preferred Stock $2,504,486 and shall have received the full proceeds thereof.
(g) Since the date of this Agreement, there shall have been converted no event, charge or occurrence, individually or in the aggregate, with respect to TARGET Common Stock.
(l) That certain Registration Rights Agreement between TARGET and marchFIRSThaving, Inc.or which could reasonably be expected to have, a Delaware corporation ("marchFIRST"), dated September 22, 2000, and that certain Stockholders Agreement between TARGET and marchFIRST dated September 22, 2000 shall have been terminatedMaterial Adverse Effect on TARGET.
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Conditions to Obligations of Purchaser and Merger Sub. The obligations of PURCHASER and MERGER SUB to perform this Agreement and consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction of the following conditions, unless waived by PURCHASER and MERGER SUB pursuant to Section 12.6(a) of this Agreement:
(a) The representations and warranties of TARGET set forth or referred to in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time with the same effect as though all such representations and warranties had been made on and as of the Effective Time (provided that representations and warranties which are confined to a specified date shall speak only as of such date), except (i) as expressly contemplated by this Agreement, or (ii) for representations and warranties (other than the representations and warranties set forth in Section 4.3 of this Agreement, which shall be true in all respects) the inaccuracies of which relate to matters that are not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on TARGET.
(b) Each and all of the agreements and covenants of TARGET to be performed and complied with pursuant to this Agreement and the other agreements contemplated hereby prior to the Effective Time shall have been duly performed and complied with in all material respects.
(c) TARGET shall have delivered to PURCHASER (i) a certificate, dated as of the Effective Time and signed on its behalf by its chief executive officer, to the effect that the conditions of its obligations set forth in Sections 9.2(a) and 9.2(b) of this Agreement have been satisfied in all material respects, and (ii) certified copies of resolutions duly adopted by TARGET's Board of Directors and stockholders evidencing the taking of all corporate action necessary to authorize the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, all in such reasonable detail as PURCHASER and its counsel shall reasonably request.
(d) TARGET shall have delivered to PURCHASER an opinion of MillO'Su▇▇▇▇▇▇ & ▇art▇▇▇ev & Karabell, ▇▇PLLP, counsel to TARGET, dated as of the Closing, in substantially the form and substance reasonably acceptable to PURCHASERof Exhibit 4 hereto.
(e) TARGET shall have amended its Articles Certificate of Incorporation to provide that the Merger shall not be deemed a dissolution, liquidation or winding up result in the automatic conversion of the TARGETTARGET Preferred Stock.
(f) Each of the officers and directors of TARGET specified in writing by PURCHASER no later than two (2) Business Days prior to the Closing shall have tendered to PURCHASER resignation letters in form and substance reasonably acceptable to PURCHASER on or prior to the Closing Date, such resignations to be effective immediately following the Closing Date.
(g) no proceeding or lawsuit shall have been commenced by any Person for the purpose of obtaining any injunction, writ or preliminary restraining order to the effect that the Merger may not be consummated as provided herein.
(gh) The holders of TARGET Capital Preferred Stock that represent all at least 75% of the outstanding shares of TARGET Preferred Stock and TARGET Common Stock (determined on as-converted basis) shall have either approved the Merger or delivered to PURCHASER TARGET irrevocable waivers of their right to demand payment for their shares in accordance with Sections 14-2-1302 and 14-2-1321 Section 262 of the OCGADGCL, which waivers shall be acceptable as to form to PURCHASER.
(hi) The Convertible Debenture Investors shall have purchased $4.5 million in aggregate principal amount of the PURCHASER's 7.5% Senior Subordinated Convertible 34 39 Debentures pursuant to the terms of that certain Convertible Debenture Purchase Agreement among PURCHASER, and the Convertible Debenture Investors dated as of October 31, 2000.
(j) All amounts outstanding under the Bridge Notes shall have been converted into TARGET Capital Stock or otherwise satisfied such that the indebtedness represented by the Bridge Notes shall not constitute indebtedness of TARGET at the Effective Time.
(k) The creditors of TARGET (other than any creditors under the Bridge Notes) shall have agreed to reduce, settle, compromise or convert into TARGET Capital Stock at least $1.0 million of TARGET's indebtedness to them (the amount by which the aggregate indebtedness owing to such creditors is reduced in accordance with this Section 9.2(k) (whether by reduction, settlement, compromise or conversion) is referred to herein as the "Creditor Concession Amount."
(l) Each of the holders of the Outstanding TARGET Shares other than holders of Dissenting Shares shall have delivered to the PURCHASER a fully-executed copy of the Investor Representation in substantially the form of Exhibit 2 4 hereto and a counterpart signature page to the Registration Rights Agreement in substantially the form of Exhibit 3 5 hereto (the "Registration Rights Agreement").
(im) There shall be no more than thirty-five (35) TARGET stockholders who are (A) U.S. persons as defined under Regulation S under the 1933 Act ("U.S. Person") and (B) not "accredited investors" as defined in Rule 501 under the 1933 Act, and there shall be a Purchaser Representative, as defined in Regulation D under the 1933 Act, reasonably satisfactory to PURCHASER, representing each holder of TARGET Capital Stock who is a U.S. Person and not as "accredited investor" as defined in Rule 501 under the 1933 Act, and such Purchaser Representative shall have executed and delivered documentation reasonably satisfactory to PURCHASER.
(n) All TARGET Options OPTIONS outstanding at the Effective Time shall be cancelled as provided in Section 8.10 8.11 hereof.
(j) Each TARGET Principal shall have delivered to PURCHASER a fully executed copy of a Non-Competition Agreement.
(k) All shares of TARGET Preferred Stock shall have been converted to TARGET Common Stock.
(l) That certain Registration Rights Agreement between TARGET and marchFIRST, Inc., a Delaware corporation ("marchFIRST"), dated September 22, 2000, and that certain Stockholders Agreement between TARGET and marchFIRST dated September 22, 2000 shall have been terminated.
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