M&A Boot Camp booklet 2023 - Flipbook - Page 133
6.4 No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any Material Adverse Effect, and no event
shall have occurred or circumstance shall exist that, in combination with any other events or circumstances, would reasonably be expected to have
or result in a Material Adverse Effect, in each case that has not been cured.
6.5 Stockholder Approval. The Certificate Amendment shall have been duly approved by the Required Amendment Stockholder Votes. The
adoption of this Agreement shall have been duly approved by the Required Merger Stockholder Votes. The number of shares of Company Capital
Stock that constitute (or that are or may be eligible to become) Dissenting Shares shall not be more than 5% of the Company Capital Stock
outstanding immediately prior to the Closing.
6.6 Certificate Amendment. The Company shall have provided Parent with evidence satisfactory to Parent that the Company has filed the
Certificate Amendment with the Secretary of State of the State of Delaware and that such Certificate Amendment is in full force and effect.
6.7 Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force
and effect:
(a) the Escrow Agreement, duly executed by the Stockholders’ Agent;
(b) Non-competition and Non-Solicitation Agreements, in the form previously delivered to Parent by each Person identified on
Schedule 6.7(b), duly executed by each Person identified on Schedule 6.7(b);
(c) agreements, in form and substance reasonably satisfactory to Parent, terminating the agreements and benefit plan identified on
Schedule 4.6;
(d) a certificate duly executed on behalf of the Company by the chief executive officer and chief financial officer of the Company and
containing the representation and warranty of the Company that: (i) the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.8, 6.10, 6.13 and
6.14, have been duly satisfied; and (ii) the Unaudited Interim Financial Statements (as defined below): (A) present fairly the financial position
of the Company as of the respective dates thereof and the results of operations and cash flows of the Company for the periods covered
thereby; and (B) have been prepared in accordance with GAAP applied on a basis consistent with the financial statements of the Company
as of, and for the period ended, December 31, 2007, except that the financial statements referred to in this clause “(d)” are subject to year-end
audit adjustments (which adjustments will not be material) (the “Company Closing Certificate”);
(e) a certificate (the “Merger Consideration Certificate”), duly executed on behalf of the Company by the chief financial officer of the
Company, containing the following information and the representation and warranty of the Company that all of such information is true and
accurate as of the Closing:
(i) the aggregate amount of Company Transaction Expenses: (A) paid prior to the Closing; and (B) payable after the Closing
(with respect to services performed or actions taken prior to the Closing);
(ii) the aggregate amount of unrestricted cash, accounts receivable (including accounts receivable recorded in connection with
customer invoices generated upon shipment of product pursuant to valid enforceable Contracts with customers) and inventory and
each category of
43.