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 CERTAIN COMPANY SHAREHOLDERS 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 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).
(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
40
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