CLOSING DATE AS THOUGH SUCH REPRESENTATION OR WARRANTY WAS MADE ON AND AS OF THE
CLOSING DATE, EXCEPT THAT ANY REPRESENTATION OR WARRANTY THAT EXPRESSLY SPEAKS
AS OF A SPECIFIED DATE EARLIER THAN THE CLOSING DATE SHALL HAVE BEEN TRUE AND
CORRECT ON AND AS OF SUCH EARLIER DATE, AND FURTHER PROVIDED THAT COMPANY AND
THE CERTAIN COMPANY SHAREHOLDERS SHALL BE PERMITTED TO UPDATE, REVISE,
SUPPLEMENT AND/OR CORRECT THE SCHEDULES THROUGH THE CLOSING DATE.
(B)
PERFORMANCE. THE COMPANY SHALL HAVE PERFORMED AND COMPLIED WITH
EACH AGREEMENT, COVENANT AND OBLIGATION REQUIRED BY THIS AGREEMENT TO BE SO
PERFORMED OR COMPLIED WITH BY THE COMPANY ON OR BEFORE THE CLOSING DATE.
(C)
OFFICERS' CERTIFICATES. THE COMPANY AND CERTAIN COMPANY
SHAREHOLDERS SHALL HAVE DELIVERED TO PARENT AND MERGER SUB A CERTIFICATE OR
CERTIFICATES, DATED THE CLOSING DATE AND EXECUTED BY THE PRESIDENT AND/OR THE
CHIEF EXECUTIVE OFFICER OF THE COMPANY, CERTIFYING AS TO THE RESOLUTIONS
DELIVERED PURSUANT TO SECTION 6.1(B) AND COMPANY'S AND THE CERTAIN COMPANY
SHAREHOLDERS' COMPLIANCE WITH THE CONDITION SET FORTH IN SECTION 6.3(A).
(D)
THIRD PARTY CONSENTS. PARENT AND MERGER SUB WILL HAVE BEEN
FURNISHED WITH EVIDENCE SATISFACTORY TO THEM THAT THE COMPANY HAS OBTAINED THE
CONSENTS, APPROVALS AND WAIVERS, IF ANY, LISTED IN SCHEDULE 2.28(B).
30
(E)
NON-COMPETITION AND EMPLOYMENT AGREEMENTS. EACH OF THE MEMBERS OF
THE SENIOR MANAGEMENT TEAM SHALL HAVE EXECUTED AND DELIVERED TO PARENT, COMPANY,
AND/OR MERGER SUB A NON-COMPETITION AND EMPLOYMENT AGREEMENT.
(F)
NO MATERIAL ADVERSE CHANGE. THERE WILL HAVE OCCURRED NO MATERIAL
ADVERSE CHANGE IN THE BUSINESS OR CONDITION OF THE COMPANY SINCE THE DATE
HEREOF.
(G)
LEGAL PROCEEDINGS. NO GOVERNMENTAL OR REGULATORY AUTHORITY WILL
HAVE NOTIFIED ANY PARTY TO THIS AGREEMENT THAT IT INTENDS TO COMMENCE
PROCEEDINGS TO RESTRAIN OR PROHIBIT THE TRANSACTIONS CONTEMPLATED HEREBY OR
FORCE RESCISSION, UNLESS SUCH GOVERNMENTAL OR REGULATORY AUTHORITY WILL HAVE
WITHDRAWN SUCH NOTICE AND ABANDONED ANY SUCH PROCEEDINGS PRIOR TO THE TIME WHICH
OTHERWISE WOULD HAVE BEEN THE CLOSING DATE.
(H)
EMPLOYEES. NOT LESS THAN 95% OF THOSE EMPLOYEES LISTED IN SCHEDULE
2.19(B), WILL BE EMPLOYED BY THE COMPANY AT THE CLOSING (AND WILL HAVE NOT GIVEN
ANY NOTICE OR OTHER INDICATION THAT THEY WILL NOT CONTINUE TO BE WILLING TO BE
EMPLOYED BY THE COMPANY AS A WHOLLY-OWNED SUBSIDIARY OF PARENT FOLLOWING THE
TRANSACTIONS CONTEMPLATED HEREBY). EACH EMPLOYEE OF THE COMPANY TO BE EMPLOYED
BY COMPANY AS A WHOLLY-OWNED SUBSIDIARY OF PARENT FOLLOWING THE CLOSING SHALL
HAVE EXECUTED PARENT'S STANDARD FORM PROPRIETARY RIGHTS AND INVENTIONS
ASSIGNMENT AGREEMENT, SUBSTANTIALLY IN THE FORM SET FORTH IN EXHIBIT B HERETO.
(I)
PROCEEDINGS AND DOCUMENTS. ALL CORPORATE AND OTHER PROCEEDINGS IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY AND ALL DOCUMENTS AND
INSTRUMENTS INCIDENT TO SUCH TRANSACTIONS WILL BE IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO PARENT AND MERGER SUB AND THEIR COUNSEL, AND PARENT
AND MERGER SUB WILL HAVE RECEIVED ALL SUCH COUNTERPART ORIGINALS OR CERTIFIED OR
OTHER COPIES OF SUCH DOCUMENTS AS THEY MAY REASONABLY REQUEST.
(J)
EQUITY EQUIVALENTS. THERE WILL BE NO UN-EXPIRED AND UNEXERCISED
EQUITY EQUIVALENTS