M&A Bootcamp booklet - Flipbook - Page 101
(h) Withholding. Each of the Payment Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any
consideration payable pursuant to this Agreement to any security holder or former security holder of the Company such amounts as Parent
determines in good faith are required to be deducted or withheld therefrom or in connection therewith under the Code or any provision of
state, local or foreign Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld and
subsequently paid to the appropriate taxing authority by Parent, Surviving Corporation or the Payment Agent, such amounts shall be treated
for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
1.10 Further Action. If, at any time after the Effective Time, any further action is reasonably determined by Parent to be necessary or
desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation or Parent with full right, title and possession of and to
all rights and property of Merger Sub and the Company, the officers and directors of the Surviving Corporation and Parent shall be fully authorized
(in the name of Merger Sub, in the name of the Company and otherwise) to take such action.
2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants, to and for the benefit of the Indemnitees, as follows:
2.1 Due Organization; No Subsidiaries; Etc.
(a) Organization. The Company has been duly organized, and is validly existing and in good standing under the laws of the jurisdiction
of its formation. The Company has full power and authority: (i) to conduct its business in the manner in which its business is currently being
conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations
under all Company Contracts.
(b) Qualification. The Company is qualified, licensed or admitted to do business as a foreign corporation, and is in good standing (to
the extent that the applicable jurisdiction recognizes the concept of good standing), under the laws of all jurisdictions where the property
owned, leased or operated by it or the nature of its business requires such qualification, license or admission and where the failure to be so
qualified, licensed or admitted would have a Material Adverse Effect. Part 2.1(b) of the Disclosure Schedule accurately sets forth each
jurisdiction where the Company is qualified, licensed and admitted to do business.
(c) Directors and Officers. Part 2.1(c) of the Disclosure Schedule accurately sets forth: (i) the names of the members of the board of
directors of the Company; (ii) the names of the members of each committee of the board of directors of the Company; and (iii) the names and
titles of the officers of each of the Company.
(d) No Subsidiaries. Except for the equity interests identified in Part 2.1(d) of the Disclosure Schedule, the Company has never owned,
beneficially or otherwise, any shares or other securities of, or any direct or indirect equity interest in, any Entity. The Company has not
agreed nor is it obligated to make any future investment in or capital contribution to any Entity. The Company has not guaranteed nor is
responsible nor liable for any obligation of any Entity in which it owns or has owned any equity interest.
12.