BY MATERIALITY, IN WHICH CASE SUCH REPRESENTATIONS AND
WARRANTIES SHALL BE TRUE AND CORRECT IN ALL RESPECTS) AS OF THE DATE OF THIS
AGREEMENT, AND, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES SPEAK
AS OF AN EARLIER DATE, AS OF THE EFFECTIVE TIME AS IF MADE AT THE EFFECTIVE TIME
AND PARENT SHALL HAVE RECEIVED A CERTIFICATE SIGNED ON BEHALF OF THE COMPANY BY
THE CHIEF EXECUTIVE OFFICER OF THE COMPANY TO THAT EFFECT.
(C)
OPINION OF COMPANY'S COUNSEL.
PARENT SHALL
HAVE RECEIVED AN OPINION DATED THE CLOSING DATE OF PROSKAUER ROSE LLP, COUNSEL
TO THE COMPANY, AS TO THE MATTERS SET FORTH IN THE FORM ATTACHED HERETO AS
EXHIBIT 9.2(C).
SUCH OPINION SHALL, AT THE REQUEST OF PARENT, BE CONFIRMED TO
ANY PERSON PROVIDING FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY.
(D)
ESCROW AGREEMENT.
FORMER COMPANY
STOCKHOLDERS' AGENT, THE ESCROW AGENT AND THE COMPANY SHALL HAVE EXECUTED AND
DELIVERED THE ESCROW AGREEMENT AND THE WORKING CAPITAL ESCROW AGREEMENT.
(E)
CERTIFICATE OF MERGER.
THE COMPANY SHALL
HAVE EXECUTED AND DELIVERED THE CERTIFICATE OF MERGER.
(F)
FINANCING. PARENT AND MERGER SUB SHALL
HAVE OBTAINED, ON TERMS AND CONDITIONS REASONABLY SATISFACTORY TO THEM, DEBT
FINANCING AND THE PROCEEDS THEREOF IN AMOUNTS (TOGETHER WITH THE EQUITY TO BE
PROVIDED BY PARENT) SUFFICIENT, TO FUND THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT.
(G)
TERMINATION OF CERTAIN AGREEMENTS.
THE
AGREEMENTS LISTED ON SCHEDULE 9.2(G) OF THE DISCLOSURE SCHEDULES SHALL HAVE BEEN
TERMINATED IN ALL RESPECTS
45
PURSUANT TO INSTRUMENTS REASONABLY SATISFACTORY TO PARENT AND WITHOUT ANY
OBLIGATIONS OR LIABILITIES THEREUNDER ON THE PART OF THE COMPANY AND ITS
SUBSIDIARIES.
(H)
REPAYMENT OF PRE-CLOSING INDEBTEDNESS.
ALL
INDEBTEDNESS LISTED ON SCHEDULE 9.2(H) OF THE DISCLOSURE SCHEDULES SHALL BE
REPAYABLE IN FULL AT THE EFFECTIVE TIME AND THE COMPANY SHALL HAVE OBTAINED AND
DELIVERED, OR CAUSED TO BE OBTAINED AND DELIVERED TO PARENT UPON SUCH REPAYMENT,
DOCUMENTATION REASONABLY SATISFACTORY TO PARENT EVIDENCING SUCH REPAYMENT AND
THE TERMINATION OF ALL LIENS ON ANY PROPERTIES SECURING SUCH INDEBTEDNESS.
(I)
RESIGNATIONS.
PARENT SHALL HAVE
RECEIVED THE WRITTEN RESIGNATIONS, EFFECTIVE AS OF THE EFFECTIVE TIME, OF EACH
DIRECTOR OF THE COMPANY AND ITS SUBSIDIARIES, OTHER THAN THOSE WHOM PARENT SHALL
HAVE SPECIFIED IN WRITING AT LEAST TWO BUSINESS DAYS PRIOR TO THE CLOSING DATE.
(J)
DISSENTING SHARES.
HOLDERS OF NO MORE
THAN 10% OF THE COMPANY COMMON STOCK SHALL HAVE EXERCISED ANY APPRAISAL OR
DISSENTERS' RIGHTS PURSUANT TO THE DGCL.
(K)
FIRPTA CERTIFICATE.
THE COMPANY SHALL HAVE
DELIVERED TO PARENT A CERTIFICATION CONFORMING TO THE REQUIREMENTS OF TREASURY
REGULATIONS 1.1445-2(C)(3) AND 1.897-2(H).
(L)
GENERAL.
ALL CORPORATE AND OTHER
PROCEEDINGS OF THE COMPANY IN CONNECTION WITH THE MERGER AND THE OTHER
TRANSACTIONS CONTEMPLATED HEREBY AND ALL DOCUMENTS INCIDENT THERETO SHALL BE
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO PARENT AND ITS COUNSEL, AND
THEY SHALL HAVE RECEIVED ALL SUCH COUNTERPART ORIGINAL AND CERTIFIED OR OTHER
COPIES OF SUCH DOCUMENTS AS THEY MAY REASONABLY REQUEST.
(M)
INDEMNIFICATION AGREEMENTS.
EACH FORMER
COMPANY STOCKHOLDER SHALL HAVE EXECUTED THE INDEMNIFICATION AGREEMENT, IN THE
FORM ATTACHED