Common use of Additional Conditions to the Obligation of the Company Clause in Contracts

Additional Conditions to the Obligation of the Company. Unless waived by the Company in accordance with Section 8.5, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) Each of Parent and Merger Sub shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date; (b) (i) the representations and warranties of Parent and Merger Sub contained in the first, second and third sentences of Section 4.1 (Corporate Organization) and in Sections 4.2 (Organizational Documents), 4.3 (Capitalization) and 4.4(a) (Authority) shall be true and correct in all material respects (except for representations and warranties in any such sections qualified as to materiality or Parent Material Adverse Effect, which shall be true and correct in all respects) at and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (ii) the representations and warranties of Parent and Merger Sub in Article IV of this Agreement other than those specified in the preceding clause (i) shall be true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) at and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, with respect to the representations and warranties referred to in this clause (ii), where the failure of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) would not, individually or in the aggregate, have a Parent Material Adverse Effect; (c) The Company shall have received a certificate signed on behalf of Parent by an executive officer of Parent to the effect that the conditions in clauses (a) and (b) of this Section 7.2 above have been satisfied; (d) The Company shall have received an opinion (reasonably acceptable in form and substance to the Company) from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., dated as of the Closing Date, to the effect that for federal income tax purposes (i) the Merger will be treated as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Merger Sub and the Company will be a party to such reorganization within the meaning of Section 368(b) of the Code, and that opinion shall not have been withdrawn, revoked or modified; that opinion will be based upon representations of the parties contained in this Agreement and in the tax representation letters described in Section 6.12; provided, however, that the condition set forth in this paragraph (d) shall not be applicable, and shall be deemed stricken, if there has been an IP Sale or spin-off of patents as contemplated by the last paragraph of Section 5.1 and, as a result of such IP Sale or spin-off, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. is unable to deliver such opinion; and (e) From the date of this Agreement through the Closing, there shall not have occurred any change in the condition (financial or otherwise), operations, business or properties of Parent and the Parent Subsidiaries that constitutes or is reasonably likely to constitute a Parent Material Adverse Effect.

Additional Conditions to the Obligation of the Company. Unless waived by the Company in accordance with Section 8.5, the obligation The obligations of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Effective Date of the following additional conditions: (a) Each representation or warranty of Parent and Merger Sub shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date; (b) (i) the representations and warranties of Parent and Merger Sub contained in the first, second and third sentences of Section 4.1 (Corporate Organization) and in Sections 4.2 (Organizational Documents), 4.3 (Capitalization) and 4.4(a) (Authority) Subsidiaries shall be true and correct in all material respects (except for circumstances which, when considered individually or in the aggregate, have not had or would not reasonably be expected to have a Parent Material Adverse Effect, in each case as if such representations and warranties were made at the date of this Agreement and as of the Closing Date (other than to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct as of such date and provided that any such sections representation or warranty that is qualified as to by materiality or Parent Material Adverse Effect, which Effect shall be true and correct in all respects). There shall not have been a breach in any respect by Parent and Subsidiary of any covenant or agreement set forth herein which breach shall not have been remedied within 10 days (or by the Outside Date, if sooner) at of written notice specifying such breach in reasonable detail and as of the Closing Date as though made on or as of the Closing Date demanding that same be remedied (except where such failure to the extent expressly made as of an earlier date, in which case as of such earlier date) and (ii) the representations and warranties of Parent and Merger Sub in Article IV of this Agreement other than those specified in the preceding clause (i) shall be true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) at such breach, taken together with all other such failures and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier datebreaches, in which case as of such earlier date), except, with respect to the representations and warranties referred to in this clause (ii), where the failure of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) would not, individually or in the aggregate, not have a Parent Material Adverse Effect;); or (b) There shall not be any pending suit, action, investigation or proceeding brought by any governmental authority before any court (domestic or foreign) or any action taken, or any statute, rule, regulation, decree, order or injunction promulgated, enacted, entered into or enforced by any state, federal or foreign government or governmental agency or authority or by any court (domestic or foreign) that would reasonably be expected to have the effect of making illegal or otherwise restraining or prohibiting the consummation of the Merger or materially delaying the Merger. (c) The Company shall have received a certificate signed on behalf legal opinion dated the Effective Date from the Law Office of Parent Sxxxxxx X. Xxxxxx as counsel to Parent, in a form previously reviewed by an executive officer of Parent and reasonably satisfactory to the effect that the conditions in clauses (a) and (b) of this Section 7.2 above have been satisfied;Company. (d) The Company shall have received an the written opinion (reasonably acceptable from Sxxxx Xxxxxx provided for in form and substance to the CompanySection 6.2(d) from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., dated as of the Closing Date, to the effect that for federal income tax purposes (i) the Merger will be treated as constitute a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Merger Sub and the Company will be a party to such reorganization within the meaning of Section 368(b) of the Code, and that opinion shall not have been withdrawn, revoked or modified; that opinion will be based upon representations of the parties contained in this Agreement and in the tax representation letters described in Section 6.12; provided, however, that the condition set forth in this paragraph (d) shall not be applicable, and shall be deemed stricken, if there has been an IP Sale or spin-off of patents as contemplated by the last paragraph of Section 5.1 and, as a result of such IP Sale or spin-off, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. is unable to deliver such opinion; and. (e) From the date of this Agreement through the Closing, there There shall not have occurred and continue to exist any change event that individually or in the condition (financial or otherwise), operations, business or properties of Parent and the Parent Subsidiaries that constitutes or is aggregate would reasonably likely be expected to constitute have a Parent Material Adverse Effect.

Additional Conditions to the Obligation of the Company. Unless waived by the Company in accordance with Section 8.5, the The obligation of the Company to effect the Merger shall be is also subject to the fulfillment at or prior to the Closing Date Effective Time of the following additional conditions:conditions (unless waived): (a) Each each of Parent Millers and Merger Sub shall have performed in all material respects all obligations required have performed each obligation and agreement and complied with each covenant to be performed and complied with by it under this Agreement at hereunder on or prior to the Closing DateEffective Time; (b) (i) the representations and warranties of Parent Millers and Merger Sub contained in the first, second and third sentences of Section 4.1 (Corporate Organization) and in Sections 4.2 (Organizational Documents), 4.3 (Capitalization) and 4.4(a) (Authority) this Agreement shall be true and correct in all material respects (except for representations when made and warranties in any such sections qualified as to materiality or Parent Material Adverse Effect, which shall be true at the Effective Time with the same force and correct in all respects) at and as of the Closing Date effect as though made on or at such time, except as of affected by the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (ii) the representations and warranties of Parent and Merger Sub in Article IV of this Agreement other than those specified in the preceding clause (i) shall be true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) at and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, with respect to the representations and warranties referred to in this clause (ii), where the failure of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) would not, individually or in the aggregate, have a Parent Material Adverse Effecttransactions contemplated hereby; (c) Millers and Merger Sub shall have furnished to the Company a certificate, dated the Effective Date, signed by a responsible officer of each of Millers and Merger Sub, to the effect that all conditions set forth in Section 8.2(a) and (b) have been satisfied; and (d) the Company and the Management Shareholders shall have received an opinion dated the Effective Date of counsel to Millers and Merger Sub, substantially in the form of Exhibit E hereto, which opinion shall be satisfactory to counsel for the Company. (e) Employment Agreements in the forms attached as Exhibits D-1 and D-2 shall have been executed and delivered to the appropriate parties by the Surviving Corporation. (f) The Company shall have received a copy of the resolutions of the Boards of Directors of Millers and Merger Sub authorizing the execution, delivery and performance of the Agreement and the consummation of the transactions contemplated hereby and a copy of the resolutions of Millers as the sole shareholder of Merger Sub approving the Merger, all certified by the secretaries of Millers and Merger Sub on the Effective Date. Such certificates shall state that the resolutions set forth therein have not been amended, modified, revoked or rescinded as of the date of such certificates; (g) The Company shall have received a certificate signed on behalf of Parent by an executive officer the secretary of Parent Millers and Merger Sub dated the Effective Date, as to the effect that incumbency and signature of the conditions in clauses (a) officers of Millers and (b) Merger Sub executing this Agreement and any certificate, agreement or other documents to be delivered pursuant hereto, together with evidence of this Section 7.2 above have been satisfiedthe incumbency of such secretary; (dh) The Company shall have received an opinion (i) a copy, certified as of a date reasonably acceptable in form and substance close to the CompanyEffective Date by the Department of Financial Institutions of Wisconsin, of the Articles of Incorporation, together with all amendments thereto, of Merger Sub, (ii) from Mintza copy, Levin, Cohn, Ferris, Glovsky and Popeo P.C., dated certified as of the Closing Effective Date by the secretary or an assistant secretary of Merger Sub, of the bylaws of Merger Sub in effect on the Effective Date, (iii) a certificate or telex confirmation as of the Effective Date from the Department of Financial Institutions of Wisconsin as to the existence of Merger Sub as a Wisconsin corporation, and (iv) a certificate dated the Effective Date from the secretary of assistant secretary of Merger Sub to the effect that for federal income tax purposes the documents delivered pursuant to (i) the Merger will be treated as a reorganization within the meaning of Section 368(a) of the Code are true and (ii) each of Parent, Merger Sub and the Company will be a party to such reorganization within the meaning of Section 368(b) of the Code, and that opinion shall not have been withdrawn, revoked or modified; that opinion will be based upon representations of the parties contained in this Agreement and in the tax representation letters described in Section 6.12; provided, however, that the condition set forth in this paragraph (d) shall not be applicable, and shall be deemed stricken, if there has been an IP Sale or spin-off of patents as contemplated by the last paragraph of Section 5.1 and, as a result correct copies of such IP Sale or spin-off, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. is unable to deliver such opinion; and (e) From documents as are on file with the date Department of this Agreement through the Closing, there shall not have occurred any change in the condition (financial or otherwise), operations, business or properties Financial Institutions of Parent and the Parent Subsidiaries that constitutes or is reasonably likely to constitute a Parent Material Adverse Effect.Wisconsin

Additional Conditions to the Obligation of the Company. Unless waived by the Company in accordance with Section 8.5, the obligation The obligations of the Company to effect the Company Merger shall be subject to the fulfillment at or prior to the Closing Date Effective Time of the following additional conditions: (a) Each of Parent and Merger Sub shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date; (b) (i) the representations Any representation or warranty of Parent, Holdco and warranties of Parent and Merger Sub contained in the first, second and third sentences of Section 4.1 (Corporate Organization) and in Sections 4.2 (Organizational Documents), 4.3 (Capitalization) and 4.4(a) (Authority) Acquisition I shall be true and correct in all material respects (except for representations and warranties in any such sections qualified as to materiality or Parent Material Adverse Effectcircumstances which, which shall be true and correct in all respects) at and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (ii) the representations and warranties of Parent and Merger Sub in Article IV of this Agreement other than those specified in the preceding clause (i) shall be true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) at and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, with respect to the representations and warranties referred to in this clause (ii), where the failure of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) would not, when considered individually or in the aggregate, have not had or would not reasonably be expected to have a Parent Material Adverse 41 Effect, in each case as if such representations and warranties were made at the date of this Agreement and as of the Closing Date (other than to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct as of such date). There shall not have been a breach in any material respect by the Parent, Holdco and Acquisition I of any material covenant or agreement set forth in the Merger Agreement which breach shall not have been remedied within 10 days (or by the Outside Date, if sooner) of written notice specifying such breach in reasonable detail and demanding that same be remedied (except where such failure to be true and correct or such breach, taken together with all other such failures and breaches, would not have a Parent Material Adverse Effect;); or (c) The Company shall have received a certificate signed on behalf of Parent by an executive officer of Parent to the effect that the conditions in clauses (a) and (b) of this Section 7.2 above have been satisfied; (d) The Company shall have received an opinion (reasonably acceptable in form and substance to the Company) from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., dated as of the Closing Date, to the effect that for federal income tax purposes (i) the Merger will be treated as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Merger Sub and the Company will be a party to such reorganization within the meaning of Section 368(b) of the Code, and that opinion shall not have been withdrawn, revoked or modified; that opinion will be based upon representations of the parties contained in this Agreement and in the tax representation letters described in Section 6.12; provided, however, that the condition set forth in this paragraph (d) There shall not be applicableany pending suit, and shall action, investigation or proceeding brought by any governmental authority before any court (domestic or foreign) or any action taken, or any statute, rule, regulation, decree, order or injunction promulgated, enacted, entered into or enforced by any state, federal or foreign government or governmental agency or authority or by any court (domestic or foreign) that would reasonably be deemed stricken, if there has been an IP Sale expected to have the effect of making illegal or spin-off otherwise restraining or prohibiting the consummation of patents as contemplated by the last paragraph of Section 5.1 and, as a result of such IP Sale Mergers or spin-off, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. is unable to deliver such opinion; and (e) From materially delaying the date of this Agreement through the Closing, there shall not have occurred any change in the condition (financial or otherwise), operations, business or properties of Parent and the Parent Subsidiaries that constitutes or is reasonably likely to constitute a Parent Material Adverse EffectMergers.

Additional Conditions to the Obligation of the Company. Unless waived by the Company in accordance with Section 8.5, the The obligation of the Company to effect the Merger shall be is also subject to the fulfillment at or prior to the Closing Date Effective Time of the following additional conditionsconditions (unless waived) or except as otherwise contemplated or permitted by this Agreement: (a) Each each of Parent AMRE and Merger Sub shall have performed in all material respects all obligations required have performed each obligation and agreement and complied with each covenant to be performed and complied with by it under this Agreement at hereunder on or prior to the Closing DateEffective Time; (b) (i) the representations and warranties of Parent AMRE and Merger Sub contained in the first, second and third sentences of Section 4.1 (Corporate Organization) and in Sections 4.2 (Organizational Documents), 4.3 (Capitalization) and 4.4(a) (Authority) this Agreement shall be true and correct in all material respects (except for representations when made and warranties in any such sections qualified as to materiality or Parent Material Adverse Effect, which shall be true at the Effective Time with the same force and correct in all respects) at and as of the Closing Date effect as though made on or at such time, except as of affected by the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (ii) the representations and warranties of Parent and Merger Sub in Article IV of this Agreement other than those specified in the preceding clause (i) shall be true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) at and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, with respect to the representations and warranties referred to in this clause (ii), where the failure of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) would not, individually or in the aggregate, have a Parent Material Adverse Effecttransactions contemplated hereby; (c) AMRE and Merger Sub shall have furnished to the Company a certificate, dated the Effective Date, signed by a responsible officer of each of AMRE and Merger Sub, to the effect that to the best of their knowledge, all conditions set forth in Section 6.2(a) and (b) have been satisfied; provided however, such officer shall have no personal liability therefore unless such officer knew the certificate to be false at the time such certificate was executed; (d) AMRE and Merger Sub shall have provided or made available to the Company or its designated representatives the information and documents as specified in Section 5.9(b) for review by the Company and its agents and representatives and the results of the due diligence review undertaken by or on behalf of the Company, including, without limitation, the financial condition of AMRE, shall be deemed materially satisfactory by the Company; (e) AMRE shall have entered into an employment agreement with John Xxxxx xxxstantially in the form attached hereto as Exhibit F (the "EMPLOYMENT AGREEMENT"); (f) The Company shall have received a certificate signed the opinion of Ernst & Young LLP dated on behalf of Parent by an executive officer of Parent or about the Effective Date to the effect that the conditions in clauses (a) and (b) of this Section 7.2 above have been satisfied; (d) The Company shall have received an opinion (reasonably acceptable in form and substance to the Company) from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., dated as of the Closing Date, to the effect that for federal income tax purposes (i) the Merger will be treated as constitute a reorganization within the meaning of Section 368(a368(a)(1)(A) of the Code and by reason of Section 368(a)(2)(E) of the Code; (ii) each of ParentAMRE, Merger Sub Sub, and the Company will each be a party to such the reorganization within the meaning of Section 368(b) of the Code; (iii) the Merger will result in the recognition of no gain or loss to AMRE, Merger Sub, the Company, or the shareholders of each, except for any cash paid in connection with the exercise of dissenters' rights; (iv) the adjusted basis of each former shareholder of the Company in the AMRE Common Stock received in the Merger will be the same as the adjusted basis of the Company stock surrendered in exchange therefor; (v) the holding period of the AMRE Common Stock received by shareholders of the Company will include the holding period of the Company stock surrendered in exchange therefor; and (vi) effectuation of the intended termination of the ESOP, any sale of the unallocated shares, and that opinion shall not have been withdrawn, revoked or modified; that opinion will be based upon representations distribution of the parties contained in this Agreement and in allocated shares to the tax representation letters described in Section 6.12; provided, however, that ESOP participants will not invalidate the condition set forth in this paragraph (d) shall not be applicable, and shall be deemed stricken, if there has been an IP Sale or spintax-off free status of patents as contemplated by the last paragraph of Section 5.1 and, as a result of such IP Sale or spin-off, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. is unable to deliver such opinionreorganization; and (eg) From The ESOP shall have received the opinion of Barrx Xxxxxxx, Xxd. or such other qualified independent appraiser (as defined in Section 401(a)(28)(C) of the Code) at the Effective Time that (i) the exchange of the Preferred Shares for AMRE Common Stock by the ESOP was for adequate consideration (as defined in Section 3(18) of ERISA and the proposed regulations thereunder), and (ii) the transactions contemplated by the Agreement (including such exchange) are fair to the ESOP from a financial point of view. (h) The Company shall have received copies of the resolutions of the Board of Directors of AMRE and the Board of Directors of Merger Sub authorizing the execution, delivery and performance of the Agreement and the consummation of the transactions contemplated hereby and a copy of the resolutions or other consent of the shareholder of Merger Sub approving the Merger, all certified by the Secretary of AMRE or the Secretary of Merger Sub, as the case may be, on the Effective Date. Such certificates shall state that the resolutions set forth therein have not been amended, modified, revoked or rescinded as of the date of this Agreement through such certificates; (i) The Company shall have received certificates of the Closing, there shall not have occurred any change in the condition (financial or otherwise), operations, business or properties Secretary of Parent AMRE and the Parent Subsidiaries that constitutes or is reasonably likely Secretary of Merger Sub dated the Effective Date, as to constitute a Parent Material Adverse Effect.the incum-

Additional Conditions to the Obligation of the Company. Unless waived by the Company in accordance with Section 8.5, the The obligation of the Company to effect the Merger shall be is also subject to the fulfillment at or prior to the Closing Date Effective Time of the following additional conditionsconditions (unless waived) or except as otherwise contemplated or permitted by this Agreement: (a) Each each of Parent AMRE and Merger Sub shall have performed in all material respects all obligations required have performed each obligation and agreement and complied with each covenant to be performed and complied with by it under this Agreement at hereunder on or prior to the Closing DateEffective Time; (b) (i) the representations and warranties of Parent AMRE and Merger Sub contained in the first, second and third sentences of Section 4.1 (Corporate Organization) and in Sections 4.2 (Organizational Documents), 4.3 (Capitalization) and 4.4(a) (Authority) this Agreement shall be true and correct in all material respects (except for representations when made and warranties in any such sections qualified as to materiality or Parent Material Adverse Effect, which shall be true at the Effective Time with the same force and correct in all respects) at and as of the Closing Date effect as though made on or at such time, except as of affected by the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (ii) the representations and warranties of Parent and Merger Sub in Article IV of this Agreement other than those specified in the preceding clause (i) shall be true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) at and as of the Closing Date as though made on or as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, with respect to the representations and warranties referred to in this clause (ii), where the failure of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse Effect) would not, individually or in the aggregate, have a Parent Material Adverse Effecttransactions contemplated hereby; (c) AMRE and Merger Sub shall have furnished to the Company a certificate, dated the Effective Date, signed by a responsible officer of each of AMRE and Merger Sub, to the effect that to the best of their knowledge, all conditions set forth in Section 6.2(a) and (b) have been satisfied; provided however, such officer shall have no personal liability therefore unless such officer knew the certificate to be false at the time such certificate was executed; (d) AMRE and Merger Sub shall have provided or made available to the Company or its designated representatives the information and documents as specified in Section 5.9(b) for review by the Company and its agents and representatives and the results of the due diligence review undertaken by or on behalf of the Company, including, without limitation, the financial condition of AMRE, shall be deemed materially satisfactory by the Company; (e) AMRE shall have entered into an employment agreement with John Xxxxx xxxstantially in the form attached hereto as Exhibit F (the "EMPLOYMENT AGREEMENT"); (f) The Company shall have received a certificate signed the opinion of Ernst & Young LLP dated on behalf of Parent by an executive officer of Parent or about the Effective Date to the effect that the conditions in clauses (a) and (b) of this Section 7.2 above have been satisfied; (d) The Company shall have received an opinion (reasonably acceptable in form and substance to the Company) from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., dated as of the Closing Date, to the effect that for federal income tax purposes (i) the Merger will be treated as constitute a reorganization within the meaning of Section 368(a368(a)(1)(A) of the Code and by reason of Section 368(a)(2)(E) of the Code; (ii) each of ParentAMRE, Merger Sub Sub, and the Company will each be a party to such the reorganization within the meaning of Section 368(b) of the Code; (iii) the Merger will result in the recognition of no gain or loss to AMRE, Merger Sub, the Company, or the shareholders of each, except for any cash paid in connection with the exercise of dissenters' rights; (iv) the adjusted basis of each former shareholder of the Company in the AMRE Common Stock received in the Merger will be the same as the adjusted basis of the Company stock surrendered in exchange therefor; (v) the holding period of the AMRE Common Stock received by shareholders of the Company will include the holding period of the Company stock surrendered in exchange therefor; and (vi) effectuation of the intended termination of the ESOP, any sale of the unallocated shares, and that opinion shall not have been withdrawn, revoked or modified; that opinion will be based upon representations distribution of the parties contained in this Agreement and in allocated shares to the tax representation letters described in Section 6.12; provided, however, that ESOP participants will not invalidate the condition set forth in this paragraph (d) shall not be applicable, and shall be deemed stricken, if there has been an IP Sale or spintax-off free status of patents as contemplated by the last paragraph of Section 5.1 and, as a result of such IP Sale or spin-off, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. is unable to deliver such opinionreorganization; and (eg) From The ESOP shall have received the opinion of Barrx Xxxxxxx, Xxd. or such other qualified independent appraiser (as defined in Section 401(a)(28)(C) of the Code) at the Effective Time that (i) the exchange of the Preferred Shares for AMRE Common Stock by the ESOP was for adequate consideration (as defined in Section 3(18) of ERISA and the proposed regulations thereunder), and (ii) the transactions contemplated by the Agreement (including such exchange) are fair to the ESOP from a financial point of view. (h) The Company shall have received copies of the resolutions of the Board of Directors of AMRE and the Board of Directors of Merger Sub authorizing the execution, delivery and performance of the Agreement and the consummation of the transactions contemplated hereby and a copy of the resolutions or other consent of the shareholder of Merger Sub approving the Merger, all certified by the Secretary of AMRE or the Secretary of Merger Sub, as the case may be, on the Effective Date. Such certificates shall state that the resolutions set forth therein have not been amended, modified, revoked or rescinded as of the date of such certificates; (i) The Company shall have received certificates of the Secretary of AMRE and the Secretary of Merger Sub dated the Effective Date, as to the 37 42 incumbency and signature of the officers of AMRE and Merger Sub executing this Agreement through and any certificate, agreement or other documents to be delivered pursuant hereto, together with evidence of the Closing, there shall not have occurred any change in the condition (financial or otherwise), operations, business or properties incumbency of Parent and the Parent Subsidiaries that constitutes or is reasonably likely to constitute a Parent Material Adverse Effect.each such Secretary;