(jj) To the knowledge of the Company, since the date of the latest financial statements of the Acquired Company included or incorporated by reference in the Pricing Prospectus, and except as disclosed in the Pricing Prospectus, there has not been any material adverse change in the business, financial condition, or results of operations of Acquired Company and its subsidiaries, taken as a whole;
(kk) To the knowledge of the Company, (i) each party to the Acquisition Agreement was, prior to the Acquisition, in compliance in all material respects with its respective covenants and agreements contained in the Acquisition Agreement and required to be performed or complied with by such party prior to the Acquisition and (ii) all representations and warranties made by the Seller in the Acquisition Agreement are, treating such Acquisition Agreement as still in effect, true and correct (for the avoidance of doubt, giving effect to any limitation as to materiality or Material Adverse Effect (as defined in the Acquisition Agreement) or similar limitation as set forth in such representations and warranties); and
(ll) Immediately after any sale of Stock by the Company or the Forward Seller hereunder, the aggregate amount of Stock that has been issued and sold by the Company or the Forward Seller hereunder shall not exceed the aggregate amount of Stock registered under the Registration Statement (in this regard, the Company acknowledges and agrees that the Underwriter shall have no responsibility for maintaining records with respect to the aggregate amount of Stock sold, or of otherwise monitoring the availability of the Stock for sale, under the Registration Statement).
2. The Forward Seller represents and warrants to, and agrees with, the Underwriter and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by the Forward Seller and, at the Time of Delivery, the Forward Seller will have full right, power and authority to sell, transfer and deliver the Borrowed Securities;
(b) The Forward Sale Agreement has been duly authorized, executed and delivered by the Forward Purchaser and constitutes a valid and legally binding agreement of the Forward Purchaser, enforceable against the Forward Purchaser in accordance with its terms, except as enforceability thereof may be limited by considerations of public policy, bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors rights and to general equity principles; and
(c) The Forward Seller shall, at the Time of Delivery, have the free and unqualified right to transfer any Borrowed Securities, to the extent that it is required to transfer such Borrowed Securities hereunder, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind; and upon delivery of such Borrowed Securities and payment of the purchase price therefor as herein contemplated, assuming the Underwriter has no notice of any adverse claim, such Underwriter shall have the free and unqualified right to transfer the Borrowed Securities purchased by it from the Forward Seller, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind.
3. (a) Subject to the terms and conditions herein set forth, each of the Forward Seller (with respect to the Borrowed Securities) and the Company (with respect to any Company Top-Up Securities), severally and not jointly, agrees to sell to the Underwriter, and the Underwriter agrees to purchase from the Forward Seller (with respect to the Borrowed Securities) and the Company (with respect to any Company Top-Up Securities) such Securities at a purchase price per share of $46.00.