Common use of Solvency Matters Clause in Contracts

Solvency Matters. As soon as practicable after the date hereof, Seller shall engage a nationally recognized business valuation expert reasonably satisfactory to Purchaser (the "APPRAISER"), to provide an opinion to the effect that as of Effective Time after giving effect to (a) the consummation of the transactions contemplated hereby, including the transfer of the Transferred Assets and the Transferred Liabilities, and (b) the consummation of the Other Transaction, Seller (i) will own assets the fair saleable value of which is (1) greater than the total amount of its liabilities (including the amount of any contingent liabilities estimated on a reasonable basis based on the probability of incurrence of such contingent liabilities and the magnitude of such contingent liabilities were they to be fully incurred, whether or not such contingent liabilities meet the criteria for accrual under generally accepted accounting principles) and (2) greater than the amount that will be required to pay the probable liabilities of Seller's indebtedness as such becomes absolute and mature, (ii) has capital that is not unreasonably small in relation to Seller's business as currently conducted, or as will be conducted after giving effect to the consummation of the transactions contemplated hereby and the Other Transaction, and (iii) will be able to pay its indebtedness and other liabilities (including the reasonably anticipated amount of subordinated, unmatured, unliquidated and contingent liabilities) as they become due (the "SOLVENCY OPINION"). Seller shall provide all information to the Appraiser as may necessary to enable to the Appraiser to render the Solvency Opinion, shall cause the Appraiser to deliver the Solvency Opinion as soon as reasonably practicable after the date hereof, and shall cause the Appraiser to reaffirm the Solvency Opinion as of the Closing Date. Except as otherwise set forth on Schedule 8.18, all costs and expenses for the Appraiser shall be borne equally by Seller and Purchaser.

Solvency Matters. As soon as practicable after Under the date hereofterms of the Merger Agreement, Seller shall engage Parent and the Company have agreed to jointly retain a nationally recognized business valuation expert reasonably mutually satisfactory to Purchaser appraisal firm (the "APPRAISERAppraiser"), ) to provide an opinion a letter to the Special Committee and the Board of Directors of the Parent (the "Solvency Letter") to the effect that as of Effective Time after giving the financing to be provided to Purchaser to effect to (a) the consummation of Offer and the Merger and the other transactions contemplated hereby, including in the transfer of the Transferred Assets and the Transferred Liabilities, and (b) the consummation of the Other Transaction, Seller Merger Agreement will not cause: (i) will own assets the fair saleable salable value of which is (1) greater the Surviving Corporation's assets to be less than the total amount of its liabilities existing liabilities; (including ii) the amount fair salable value of any contingent liabilities estimated on a reasonable basis based on the probability assets of incurrence of such contingent liabilities and the magnitude of such contingent liabilities were they Surviving Corporation to be fully incurred, whether or not such contingent liabilities meet the criteria for accrual under generally accepted accounting principles) and (2) greater less than the amount that will be required to pay the its probable liabilities of Seller's indebtedness on its existing debts as such becomes absolute and they mature, (ii) has capital that is not unreasonably small in relation to Seller's business as currently conducted, or as will be conducted after giving effect to the consummation of the transactions contemplated hereby and the Other Transaction, and ; (iii) will the Surviving Corporation not to be able to pay its indebtedness and other liabilities (including the reasonably anticipated amount of subordinated, unmatured, unliquidated and contingent liabilities) existing debts as they become due mature; or (iv) the "SOLVENCY OPINION")Surviving Corporation to have an unreasonably small capital with which to engage in its business. Seller shall provide all information to The Merger Agreement further provides that the Appraiser will be requested to deliver a Solvency Letter as may necessary to enable to promptly as practicable. If the Appraiser to render the Solvency Opinion, shall cause the Appraiser is unable to deliver the Solvency Opinion as soon as reasonably practicable after the date hereof, and shall cause the Appraiser to reaffirm Letter or the Solvency Opinion Letter is not reasonably acceptable to the Special Committee (after reasonable efforts are made to remedy any deficiencies in the Solvency Letter), Parent and Purchaser have covenanted and agreed in the Merger Agreement that, notwithstanding anything to the contrary in the Merger Agreement, Parent and Purchaser shall not consummate the Offer. Indemnification, Exculpation and Insurance. In the Merger Agreement, Parent has agreed that all rights to indemnification and exculpation (including the advancement of expenses) from liabilities for acts or omissions occurring at or prior to the Effective Time (including with respect to the transactions contemplated by the Merger Agreement) existing as of September 13, 1999 or at the Effective Time in favor of the then current or former directors or officers of the Company as provided in the Company's Amended and Restated Articles of Incorporation, the Company's Restated Bylaws or any indemnification agreements (each as in effect on September 13, 1999) shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Closing DateEffective Time and shall survive the Merger and shall continue in full force and effect without amendment, modification or repeal in accordance with their terms; provided, however, that if any claims are asserted or made during the continuance of such terms, all rights to indemnification (and to advancement of expenses) under the Merger Agreement in respect of any such claims shall continue, without diminution, until disposition of any and all such claims. Except The Merger Agreement provides that in the event that Parent, the Surviving Corporation or any of their successors or assigns: (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger; or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of Parent or the Surviving Corporation, as otherwise the case may be, shall expressly assume the obligations set forth above. In the event the Surviving Corporation transfers any material portion of its assets, in a single transaction or in a series of transactions, Parent has agreed in the Merger Agreement that it will either guarantee the indemnification obligations referred to in paragraph (a) above or take such other action to insure that the ability of the Surviving Corporation, legal and financial, to satisfy such indemnification obligations will not be diminished in any material respect. The Merger Agreement provides that the Surviving Corporation shall: (i) maintain for a period of not less than six years from the Effective Time the Company's current directors' and officers' insurance and indemnification policy to the extent that it provides coverage for events occurring prior to the Effective Time (the "D&O Insurance"), for all persons who are directors or officers of the Company on Schedule 8.18September 13, all costs and expenses 1999 (the "Insured Parties"); or (ii) cause to be provided coverage no less advantageous to the Insured Parties than the D&O Insurance, in each case so long as the annual premium therefor would not be in excess of 150% of the last annual premium paid for the Appraiser shall D&O Insurance prior to the date of the Merger Agreement (such 150% amount, the "Maximum Premium"). If the existing D&O Insurance expires, is terminated or canceled during such six-year period, the Merger Agreement provides that the Surviving Corporation will use all reasonable efforts to cause to be borne equally by Seller and Purchaserobtained as much D&O Insurance as can be obtained for the remainder of such period for an annualized premium not in excess of the Maximum Premium.