SECTION 6.2(A), SECTION 6.2(B) AND
SECTION 6.2(C).
(E)
CONSENTS UNDER AGREEMENTS.
THE COMPANY SHALL HAVE OBTAINED THE
CONSENT, APPROVAL OR OTHER AUTHORIZATION OF EACH PERSON THAT IS NOT A
GOVERNMENTAL ENTITY WHOSE CONSENT, APPROVAL OR AUTHORIZATION IS REQUIRED TO
CONSUMMATE THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
EXCEPT THOSE FOR WHICH THE FAILURE TO OBTAIN COULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, REASONABLY BE EXPECTED TO HAVE A COMPANY MATERIAL ADVERSE EFFECT.
(F)
DIRECTOR RESIGNATIONS.
PARENT SHALL HAVE RECEIVED WRITTEN
RESIGNATION LETTERS, TO THE EXTENT REQUESTED IN ACCORDANCE WITH IMPLEMENTING
SECTION 1.7, FROM EACH OF THE MEMBERS OF THE BOARD OF DIRECTORS OF THE COMPANY
EFFECTIVE AS OF THE EFFECTIVE TIME.
(G)
FINANCING.
PARENT SHALL HAVE OBTAINED THE FINANCING.
(H)
WARRANTS.
PARENT SHALL HAVE EXERCISED THE WARRANTS AS
CONTEMPLATED BY SECTION 5.15 AND PARENT SHALL HAVE RECEIVED THE COMPANY COMMON
STOCK ISSUED PURSUANT TO SUCH WARRANTS.
(I)
PRINCIPAL STOCKHOLDERS AGREEMENT.
THE PRINCIPAL COMPANY
STOCKHOLDERS AGREEMENT SHALL BE IN FULL FORCE AND EFFECT.
Section 6.3
Conditions to Obligations of the Company.
The
obligation of the Company to effect the Merger is also subject to the
satisfaction or waiver by the Company on or prior to the First Closing Date of
the following conditions:
(A)
REPRESENTATIONS AND WARRANTIES.
(I) THE REPRESENTATIONS AND
WARRANTIES OF EACH OF PARENT AND MERGER SUB SET FORTH IN THIS AGREEMENT THAT ARE
QUALIFIED AS TO MATERIALITY OR PARENT MATERIAL ADVERSE EFFECT SHALL BE TRUE AND
CORRECT WITHOUT REGARD TO SUCH MATERIALITY QUALIFICATION, AND (II) THE
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB SET FORTH IN THIS
AGREEMENT THAT ARE NOT SO QUALIFIED SHALL BE TRUE AND CORRECT, AS THOUGH MADE ON
AND AS OF THE FIRST CLOSING DATE, EXCEPT FOR
40
REPRESENTATIONS OR WARRANTIES MADE AS OF A SPECIFIED DATE, THE ACCURACY OF WHICH
SHALL BE DETERMINED AS OF THAT SPECIFIED DATE, UNLESS THE FAILURE OF SUCH
REPRESENTATIONS OR WARRANTIES REFERRED TO IN CLAUSES (I) AND (II) TO BE TRUE AND
CORRECT (AS OF THE APPROPRIATE DATES) COULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE REASONABLY BE EXPECTED TO HAVE A PARENT MATERIAL ADVERSE EFFECT.
(B)
PERFORMANCE OF OBLIGATIONS.
EACH OF PARENT AND MERGER SUB SHALL
HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL OBLIGATIONS REQUIRED TO BE PERFORMED
BY IT UNDER THIS AGREEMENT AT OR PRIOR TO THE FIRST CLOSING DATE.
(C)
OFFICER'S CERTIFICATE.
THE COMPANY SHALL HAVE RECEIVED A
CERTIFICATE, SIGNED BY A SENIOR EXECUTIVE OFFICER OF PARENT, CERTIFYING AS TO
THE MATTERS SET FORTH IN SECTION 6.3(A) AND SECTION 6.3(B).
Section 6.4
Frustration of Closing Conditions.
None of the parties
to this Agreement may rely on the failure of any condition set forth in this
ARTICLE VI to be satisfied if such failure was caused by such party's failure to
use commercially reasonable efforts to consummate the Merger and the other
transactions contemplated by this Agreement.
ARTICLE VII
INDEMNIFICATION
Section 7.1
Survival of Representations and Warranties.
All
representations and warranties of the Company contained in Article III or of
Parent contained