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AUTHORITY WILL HAVE WITHDRAWN SUCH NOTICE AND ABANDONED ANY SUCH PROCEEDINGS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.
(G)
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 THE COMPANY AND ITS COUNSEL, AND THE
COMPANY WILL HAVE RECEIVED ALL SUCH COUNTERPART ORIGINALS OR CERTIFIED OR OTHER
COPIES OF SUCH DOCUMENTS AS THEY MAY REASONABLY REQUEST.
6.3
Additional Conditions to the Obligations of
Parent and Merger Sub.
The obligations of Parent and Merger Sub to effect the
transactions contemplated hereby will be subject to the satisfaction at or prior
to the Closing Date of each of the following conditions, any of which may be
waived, in writing, exclusively by Parent and Merger Sub:
(A)
REPRESENTATIONS AND WARRANTIES.
EACH OF
THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY AND THE SHAREHOLDER IN
THIS AGREEMENT SHALL BE MATERIALLY TRUE AND CORRECT WHEN MADE AND ON AND AS OF
THE 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 SHAREHOLDER 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
THE SHAREHOLDER 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 SHAREHOLDER'S
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).
34
(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 AN EMPLOYMENT AND
NON-COMPETITION AGREEMENT IN THE FORM ATTACHED HERETO AS SCHEDULE 6.3 (EACH, 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