REPRESENTATIONS AND WARRANTIES OF EVEREST AND NEWCO. Each of Everest and Newco hereby represent and warrant to Athena and Merger Sub as follows (it being understood that each representation and warranty contained in this Article II is subject to: (a) the exceptions and disclosures set forth in the section or subsection of the Everest Disclosure Letter corresponding to the particular section or subsection in this Article II in which such representation and warranty appears; (b) the assumption that the transactions contemplated by the Distribution Agreement have occurred in compliance with the terms thereof; (c) any exception or disclosure set forth in any other section or subsection of the Everest Disclosure Letter to the extent it is reasonably apparent that such exception or disclosure is relevant to such representation and warranty; and (d) any information set forth in the Everest SEC Documents filed on the SEC’s XXXXX database on or after January 1, 2018 and publicly available at least two (2) Business Days prior to the date of this Agreement (but excluding any supplements or amendments thereto to the extent such supplement or amendment is not publicly filed at least two (2) Business Days prior to the date hereof), other than information set forth therein under the headings “Risk Factors” or “Forward-Looking Statements” and any other information or statement set forth therein that is primarily cautionary, predictive or forward-looking in nature):
REPRESENTATIONS AND WARRANTIES OF EVEREST AND NEWCO. Section 2.1 Organization and Good Standing 5 Section 2.2 Authority; Binding Nature of Agreement 6 Section 2.3 Non-Contravention; Consents 6 Section 2.4 Capitalization, Etc. 7 Section 2.5 Subsidiaries, Etc. 8 Section 2.6 Financial Statements 9 Section 2.7 Absence of Changes 10 Section 2.8 Assets 10 Section 2.9 Real Property; Leasehold 11 Section 2.10 Intellectual Property; Data Privacy 11 Section 2.11 Contracts 13 Section 2.12 Compliance with Legal Requirements; Regulatory Matters 14 Section 2.13 Anti-Corruption Compliance; Export Control and Sanctions Compliance 15 Section 2.14 Governmental Authorizations 15 Section 2.15 Tax Matters 15 Section 2.16 Employee and Labor Matters; Benefit Plans 17 Section 2.17 Environmental Matters 19 Section 2.18 Legal Proceedings; Orders 20 Section 2.19 Ownership of Athena Common Stock 20 Section 2.20 Financial Advisor 20 Section 2.21 Acknowledgement by Everest and Newco 20 Section 2.22 Newco Financing 21 TABLE OF CONTENTS (CONTINUED) PAGE ARTICLE III REPRESENTATIONS AND WARRANTIES OF ATHENA AND MERGER SUB Section 3.1 Organization and Good Standing 22 Section 3.2 Authority; Binding Nature of Agreement 22 Section 3.3 Non-Contravention; Consents 22 Section 3.4 Capitalization, Etc. 23 Section 3.5 Subsidiaries, Etc. 24 Section 3.6 SEC Filings; Financial Statements 25 Section 3.7 Absence of Changes 27 Section 3.8 Assets 27 Section 3.9 Real Property; Leasehold 27 Section 3.10 Intellectual Property; Data Privacy 28 Section 3.11 Contracts 29 Section 3.12 Compliance with Legal Requirements; Regulatory Matters 31 Section 3.13 Anti-Corruption Compliance; Export Control and Sanctions Compliance 31 Section 3.14 Governmental Authorizations 31 Section 3.15 Tax Matters 31 Section 3.16 Employee and Labor Matters; Benefit Plans 33 Section 3.17 Environmental Matters 35 Section 3.18 Legal Proceedings; Orders 36 Section 3.19 Ownership of Everest Common Stock 36 Section 3.20 Vote Required 36 Section 3.21 Financial Advisor 36 Section 3.22 Merger Sub 36 Section 3.23 Solvency 36 Section 3.24 Opinion of Financial Advisor 37 Section 3.25 Acknowledgement by Athena 37 Section 3.26 Athena Financing 37 ARTICLE IV CERTAIN COVENANTS OF THE PARTIES Section 4.1 Access and Investigation 38 Section 4.2 Operation of the Newco Business and the Newco Companies 38 Section 4.3 Operation of the Business of the Athena Companies 42 Section 4.4 Control of Other Party’s Business 45 Section 4.5 No Solicitation 45 ARTICLE V ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES...
