Common use of Additional Conditions to the Obligations of Parent and Merger Sub Clause in Contracts

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, exclusively by Parent: (a) The Fundamental Representations of the Company, other than Section 4.3, shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, in each case in all material respects. (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing. (f) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if any.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction fulfillment (or, to the extent permitted by applicable Law, waiver by Parent) at or prior to the Closing of each of the following additional conditions, any of which may be waived, in writing, exclusively by Parent: (a) The Fundamental Representations Each of SpinCo and the Company, other than Section 4.3, Company shall be true each have performed and correct complied in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on with the obligations, covenants and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; (b) all representations and warranties made by the Company set forth in Article IV and Article V (other than the representations and warranties referenced in the second and third sentences of this Section 8.3(b)), without giving effect to materiality, “Company Material Adverse Effect”, “SpinCo Material Adverse Effect” or similar qualifications, shall be true and correct in all respects at and as of the date hereof and as of the Closing DateDate as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date), except to the extent the failure of such representations and warranties to be true and correct (without giving effect to materiality, “Company Material Adverse Effect”, “SpinCo Material Adverse Effect” or similar qualifications) would not have, individually or in each case the aggregate, a SpinCo Material Adverse Effect, solely with respect to the representations and warranties set forth in Article V, or Company Material Adverse Effect, solely with respect to the representations and warranties set forth in Article IV. The representations and warranties set forth in the first sentence of Section 4.1, Section 4.2, Section 4.6, the first sentence of Section 5.1, Section 5.2, Section 5.3, Section 5.13(a), and Section 5.21 shall be true and correct in all material respects.respects at and as of the date hereof and as of the Closing Date as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date); (c) No SpinCo Material Adverse Effect shall have occurred between the date of this Agreement and the Closing Date; (d) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and certificate referenced in Section 2.3(a)(i) dated as of the Closing Date, Date signed by an authorized officer of the Company certifying as to that each of the matters conditions set forth in Section 8.3(a), (b), (c) and Section 8.3(b). (de) The Company Stockholder Approval shall have been obtained.satisfied; and (e) No SpinCo and the Company Material Adverse Effect (or such other applicable Subsidiary of the Company) shall have occurred since executed and delivered each of the date of this Agreement applicable Transaction Documents, and be continuing. (f) The Company shall have deliveredto the extent applicable, or caused performed and complied with the obligations, covenants and agreements to be deliveredperformed thereunder by them prior to the Effective Time in all material respects, or and each such agreement shall stand ready to deliver all of the certificates, instruments, Contracts be in full force and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if anyeffect.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing fulfillment of each of the following additional conditions, any one or more of which may be waived, waived in writing, exclusively writing by Parent: (a) (i) The Fundamental Representations representations and warranties of the Company, Company set forth in ARTICLE III (other than Section 4.3, those representations and warranties specifically set forth in clause “(ii)” below) shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on at and as of the date of this Agreement and on as of the Closing Date Effective Time as though if made on at and as of the Closing Date Effective Time (except to or, in the extent case of those representations and warranties that any such representation and warranty expressly speaks are made as of an earlier datea particular date or period, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier dateperiod), except where the failure of such representations and warranties of the Company to be so true and correctcorrect (disregarding all qualifications or limitations as to “materially”, “Company Material Adverse Effect” and words of similar import set forth therein) has not had, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect; (ii) the representations and warranties set forth in Section 3.5 shall be true and correct in all respects, except for de minimis inaccuracies, as of the date of this Agreement and as of the Effective Time as if made at and as of the Effective Time; and (iii) the representations and warranties set forth in Section 3.1, Section 3.2, clause “(i)” of Section 3.10, Section 3.22 and Section 3.23 shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time as if made at and as of the Effective Time. (b) The Company shall have performed or and complied in all material respects with all agreements and covenants obligations required by this Agreement to be performed or complied with by it at on or prior to the Closing Date, in each case in all material respects. (c) The There shall not have occurred and be continuing any Company shall have delivered to Parent a certificate, signed by an executive officer Material Adverse Effect between the date of the Company this Agreement and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtainedfurnished to Parent a certificate executed by its principal executive officer to evidence compliance with the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(c) of this Agreement. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing. (f) The Company shall have deliveredfurnished to Parent a certificate, or caused duly completed and executed by its principal executive officer pursuant to be delivered, or shall stand ready to deliver all Sections 1.897-2(h) and 1.1445-2(c) of the certificatesTreasury Regulations, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies certifying that the shares of Company Common Stock are not “United States real property interests” within the meaning of Section 897(c) of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if anyCode.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction fulfillment (or, to the extent permitted by applicable Law, waiver by Parent) at or prior to the Closing of each of the following additional conditions, any of which may be waived, in writing, exclusively by Parent: (a) The Fundamental Representations Each of SpinCo and the Company, other than Section 4.3, Company shall be true each have performed and correct complied in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on with the obligations, covenants and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; (b) all representations and warranties made by the Company set forth in Article IV and Article V (other than the representations and warranties referenced in the second and third sentences of this Section 8.3(b)), without giving effect to materiality, “Company Material Adverse Effect”, “SpinCo Material Adverse Effect” or similar qualifications, shall be true and correct in all respects at and as of the date hereof and as of the Closing DateDate as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date), except to the extent the failure of such representations and warranties to be true and correct (without giving effect to materiality, “Company Material Adverse Effect”, “SpinCo Material Adverse Effect” or similar qualifications) would not have, individually or in the aggregate, a SpinCo Material Adverse Effect, solely with respect to the representations and warranties set forth in Article V, or Company Material Adverse Effect, solely with respect to the representations and warranties set forth in Article IV. The representations and warranties made by the Company set forth in the first three (3) sentences of Section 4.1, Section 4.2, Section 4.6, Section 4.7, Section 5.1, the entirety of Section 5.2, Section 5.3 (other than the first sentence of Section 5.3(a) and the entirety of each case of Section 5.3(b) and Section 5.3(c)), Section 5.5 and Section 5.22 shall be true and correct in all material respects.respects at and as of the date hereof and as of the Closing Date as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date). The representations and warranties made by the Company set forth in the first sentence of Section 5.3(a) and the entirety of each of Section 5.3(c) and Section 5.24 shall be true and correct in all respects at and as of the date hereof and as of the Closing Date as though such representations and warranties were made at and as of the Closing Date (other than for de minimis deviations in the case of the representations and warranties set forth in the first sentence of Section 5.3(a) and Section 5.3(c), and except in the case of other than in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date); (c) No SpinCo Material Adverse Effect shall have occurred between the date of this Agreement and the Closing Date that is continuing; (d) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and certificate referenced in Section 2.3(a)(i) dated as of the Closing Date, Date signed by an authorized officer of the Company certifying as to that each of the matters conditions set forth in Section 8.3(a8.1(b) and Section 8.3(b8.3(a). , (db), (c) The Company Stockholder Approval shall and (e) have been obtained.satisfied; (e) No SpinCo and the Company Material Adverse Effect (or such other applicable Subsidiary of the Company) shall have occurred since executed and delivered each of the date of this Agreement applicable Transaction Documents, and to the extent applicable, performed and complied with the obligations, covenants and agreements to be continuing.performed thereunder by them prior to the Effective Time in all material respects, and each such agreement shall be in full force and effect; (f) Parent shall have received the Parent Merger Tax Opinion from Weil and a copy of the Company Tax Opinions; and (g) The Company shall have delivered, or caused to be deliveredhave, or shall stand ready have caused SpinCo to deliver all of have, delivered to Parent the certificates, instruments, Contracts certificate and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified described in Section 1.3(b2.3(a)(iii), if any.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be are subject to the satisfaction (or, to the extent permitted by Law, waiver) of the following conditions: (a) the Company shall have complied with or performed in all material respects the obligations, covenants and agreements it is required to comply with or perform at or prior to the Closing of each Date; (b) the representations and warranties of the following conditionsCompany set forth in Section 4.1 (Corporate Existence and Power), any Section 4.2 (Corporate Authorization), Section 4.4(a) (Non-Contravention with Company Charter or Company Bylaws), Section 4.6(b) (Subsidiaries’ Capitalization), Section 4.22 (Brokers; Financial Advisors), Section 4.23 (Opinion of which may be waived, in writing, exclusively by Parent: Financial Advisor) and Section 4.25 (a) The Fundamental Representations of the Company, other than Section 4.3Rights Agreements; Takeover Statutes), shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or disregarding for this purpose all “Company Material Adverse Effect” or any similar limitation contain hereinand “materiality” qualifications contained in such representations and warranties) on and as of the date of this the Agreement and on at and as of the Closing Date as though if made on and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct as of such earlier datedate or period); ; (c) (i) the representations and warranties of the Company set forth in Section 4.3 4.5 (Capitalization) shall be true and correct in all respects on and as of the date of this the Agreement and on at and as of the Closing Date as though if made on and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; date or period) (other than De Minimis Inaccuracies) and all other (ii) the representations and warranties of the Company set forth in Article IV hereof Section 4.11(b) (Absence of Certain Changes; No Company Material Adverse Effect) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and in all respects as of the date of this the Agreement and on at and as of the Closing Date as though if made on and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case as of such representation date or period); (d) the representations and warranty warranties of the Company set forth in the Agreement (other than those referred to in subparagraphs (b) and (c) above) shall be true and correct (disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the date of the Agreement and at and as of the Closing Date as if made on and as of the Closing Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such earlier datedate or period), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has have not had had, and is would not be reasonably likely expected to have have, a Company Material Adverse Effect. (b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, in each case in all material respects. (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained.; (e) No Since the date of the Agreement, there shall not have occurred any Effect that, individually or in the aggregate, has had, and would not be reasonably expected to have, a Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing.Effect; (f) The Company Parent and Merger Sub shall have delivered, or caused to be delivered, or shall stand ready to deliver all received a certificate executed on behalf of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered Company by the Company pursuant to Section 1.3(bCompany’s Chief Executive Officer and Chief Financial Officer confirming that the conditions set forth in subparagraphs (a), duly executed by the applicable signatory or signatories specified in Section 1.3(b(b), if any(c), (d) and (e) of this Section 9.2 have been satisfied; and (g) No Burdensome Condition shall have been imposed.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be are subject to the satisfaction at or prior (or, to the Closing of each extent permitted by Law, waiver) of the following conditions, any of which may be waived, in writing, exclusively by Parent: (a) The Fundamental Representations the Company shall have performed in all material respects all of its obligations, covenants and agreements under this Agreement required to be performed by it as of or prior to the Effective Time; (b) the representations and warranties of the CompanyCompany set forth in Section 4.1 (Corporate Existence and Power), other than Section 4.34.2 (Authorization), Section 4.4 (Non-Contravention), Section 4.23 (Brokers; Financial Advisors), Section 4.24 (Opinion of Financial Advisor) and Section 4.25 (Rights Agreements; Takeover Statutes), shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on at and as of the date of this Agreement and on as of the Closing Date as though if made on at and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct as of such earlier datedate or period); ; (c) the representations and warranties of the Company set forth in Section 4.3 4.5(a) and (b) (Capitalization) shall be true and correct in all respects on at and as of the date of this Agreement and on as of the Closing Date as though if made on at and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct as of such earlier datedate or period) (other than De Minimis Inaccuracies), except for any de minimis inaccuracies; and all other ; (d) the representations and warranties of the Company set forth in Article IV hereof this Agreement (other than those referred to in subparagraphs (b) and (c) above) shall be true and correct (without giving effect to any limitation as to “materiality” or disregarding for this purpose all “Company Material Adverse Effect” or any similar limitation and “materiality” qualifications contained hereinin such representations and warranties) on at and as of the date of this Agreement and on as of the Closing Date as though if made on at and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct as of such earlier datedate or period), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has have not had and is not reasonably likely to have a Company Material Adverse Effect.; (be) The since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect that is continuing; (f) Xxxxxx and Xxxxxx Sub shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, in each case in all material respects. (c) The Company shall have delivered to Parent received a certificate, signed by an executive officer certificate executed on behalf of the Company by the Company’s Chief Executive Officer and Chief Financial Officer, dated as of the Closing Date, certifying as to confirming that the matters conditions set forth in Section 8.3(a) and Section 8.3(bsubparagraphs (a). , (b), (c), (d) The Company Stockholder Approval and (e) of this Section 9.2 have been satisfied; and (g) (i) each Broker-Dealer Entity shall have received from FINRA its written approval of the respective CMA, which shall be in full force and effect, or (ii) (A) at least thirty (30) days shall have elapsed after the filing of both CMAs, (B) neither CMA shall have been obtained. rejected, terminated or withdrawn, and (eC) No Company Material Adverse Effect FINRA shall not have occurred since (1) imposed any “interim restriction” on either Broker-Dealer Entity pending a decision on the date respective CMA or (2) advised either Broker-Dealer Entity in writing that there are other substantial issues with the CMA or that it cannot move forward with the change of this Agreement and be continuing. control (fclause (i) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b(ii), duly executed by the applicable signatory or signatories specified in Section 1.3(b“FINRA Approval”), if any.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be are subject to the satisfaction (or, to the extent permitted by Law, waiver in writing) before the Closing of the following conditions: (a) the Company shall have complied with or performed in all material respects the obligations, covenants and agreements it is required to comply with or perform at or prior to the Closing of each Closing; (b) the representations and warranties of the following conditionsCompany set forth in Section 4.1 (Corporate Existence and Power), any Section 4.2 (Corporate Authorization), Section 4.4(a) (Non-Contravention with Company Charter or Company Bylaws), Section 4.6(b) (Subsidiaries), Section 4.22 (Brokers; Financial Advisors), Section 4.23 (Opinions of which may be waived, in writing, exclusively by Parent: Financial Advisor) and Section 4.25 (a) The Fundamental Representations of the Company, other than Section 4.3Takeover Statutes), shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or disregarding for this purpose all “Company Material Adverse Effect” or any similar limitation contain hereinand “materiality” qualifications contained in such representations and warranties) on and as of the date of this Agreement and on at and as of the Closing Date as though if made on and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct as of such earlier datedate or period); ; (c) (i) the representations and warranties of the Company set forth in Section 4.3 4.5 (Capitalization) shall be true and correct in all respects on and as of the date of this Agreement and on at and as of the Closing Date as though if made on and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; date or period) (other than De Minimis Inaccuracies) and all other (ii) the representations and warranties of the Company set forth in Article IV hereof and Section 4.11(b) (No Company Material Adverse Effect) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and in all respects as of the date of this Agreement and on at and as of the Closing Date as though if made on and as of the Closing Date (except to the extent that any such representation and or warranty expressly speaks as of relates to an earlier datedate or period, in which case as of such representation date or period); (d) the representations and warranty warranties of the Company set forth in Article IV (other than those referred to in subparagraphs (b) and (c) above) shall be true and correct (disregarding for this purpose all “Company Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such earlier datedate or period), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had had, and is would not be reasonably likely to have have, a Company Material Adverse Effect. (b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, in each case in all material respects. (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained.; (e) No Since the date of the Agreement, there shall not have occurred any Effect that, individually or in the aggregate, has had, and would not be reasonably likely to have, a Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing.Effect; (f) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts Required Restructuring Transaction has been approved and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed consummated in accordance with applicable Law and by the applicable signatory or signatories specified Insurance Regulators. (g) Xxxxxx and Merger Sub shall have received a certificate of the Company, executed on its behalf by an authorized officer of the Company, certifying that the conditions set forth in Section 1.3(bsubparagraphs (a), if any(b), (c), (d) and (e) of this Section 9.2 have been satisfied; and (h) No Burdensome Condition shall have been imposed.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations Unless waived by Parent in accordance with Section 8.5, the obligation of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction fulfillment at or prior to the Closing of each Date of the following additional conditions, any of which may be waived, in writing, exclusively by Parent: (a) The Fundamental Representations Company 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 the CompanyCompany contained in the first, other than second, third, fourth and sixth sentences of Section 4.33.1 (Organization and Qualification; Subsidiaries) and in Sections 3.2 (Organizational Documents), 3.3 (Capitalization), 3.4(a) (Authority), and 3.24 (State Takeover Laws) shall be true and correct in all material respects (without giving effect to except for representations and warranties in any limitation such sections qualified as to “materiality” materiality or “a Company Material Adverse Effect” or any similar limitation contain herein, which shall be true and correct in all respects) on at and as of the date of this Agreement and on as of the Closing Date as though made on and or as of the Closing Date (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); ) and (ii) the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date Article III of this Agreement and on as of other than those specified in the Closing Date as though made on and as of the Closing Date preceding clause (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof i) shall be true and correct (without giving effect to any limitation qualification as to “materiality” materiality or “a Company Material Adverse Effect” or any similar limitation contained herein) on at and as of the date of this Agreement and on as of the Closing Date as though made on and or as of the Closing Date (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except except, with respect to the representations and warranties referred to in this clause (ii), where the failure of any such representations and warranties of the Company to be so true and correctcorrect (without giving effect to any qualification as to materiality or a Company Material Adverse Effect) would not, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect.; (c) Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to the effect that the conditions in clauses (a) and (b) of this Section 7.3 above have been satisfied; (d) Parent shall have received an opinion (reasonably acceptable in form and substance to Parent) from Axxxxxx Xxxxx LLP, 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, Axxxxxx Xxxxx LLP is unable to deliver such opinion; (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 the Company and the Company Subsidiaries that constitutes or is reasonably likely to constitute a Company Material Adverse Effect; (f) Parent shall have received the statement required to be delivered by the last sentence of Section 6.13; (g) The number of Appraisal Shares for which demands for appraisal have been made and not been withdrawn shall not exceed 10% of the outstanding shares of Company Common Stock immediately prior to the Effective Time; and (h) The Company shall have performed taken all actions necessary under the Company’s 2004 Stock Incentive Plan, as amended, to cancel as of the Effective Time, in accordance with such Stock Incentive Plan and applicable law, and without payment of any consideration, all Company Stock Options and Company SARs issued under such Stock Incentive Plan that as of the Effective Time have an exercise price or complied with all agreements base price, respectively, for Company Common Stock in excess of the greater of (i) $6.05 and covenants required by this Agreement to be performed or complied with by it at or (ii) the closing stock price of Company Common Stock on NASDAQ on the last Trading Day immediately prior to the Closing Date, in each case in all material respectson a per share basis. (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing. (f) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if any.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be is subject to the satisfaction at or, to the extent permitted by this Agreement and applicable Law, waiver of, on or prior to the Closing of each Closing, of the following conditions, any of which may be waived, in writing, exclusively by Parent: (a) The Fundamental Representations (i) each of the Company’s representations or warranties set forth in Section 2.3(a), other than Section 4.32.3(d), shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” the first sentence of Section 2.4(b), Section 2.6(a), or “Company Material Adverse Effect” or any similar limitation contain herein) on and as Section 2.22 of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on hereof and as of the Closing Date (except to with the extent that any such representation same effect as though made at and warranty expressly speaks as of an earlier such date (other than representations and warranties which address matters only as of a certain date which shall be accurate as of such certain date) in all respects, (ii) each of the Company’s representations or warranties set forth in which case such representation and warranty Section 2.2 shall be true and correct as of the date hereof and as of the Closing Date with the same effect as though made at and as of such earlier date (other than representations and warranties which address matters only as of a certain date which shall be accurate as of such certain date) in all respects (except for de minimis inaccuracies, it being understood that any inaccuracy that would cause the aggregate amount payable under Section 1.7 and Section 1.8 to increase by more than $2,500,000 shall be deemed not to be a de minimus inaccuracy), and (iii) each of the Company’s other representations and warranties set forth in this Agreement shall be true and correct as of the date hereof and as of the Closing Date with the same effect as though made at and as of such date (other than representations and warranties which address matters only as of a certain date which shall be accurate as of such certain date), except for any de minimis inaccuracies; and all other where the failure of such representations and or warranties of the Company set forth in Article IV hereof shall to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, set forth in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correctwarranties), individually or in the aggregate, has not had and is would not reasonably likely be expected to have result in a Company Material Adverse Effect.; (b) The the Company shall have performed or and complied with in all agreements material respects all covenants and covenants obligations required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date, in each case in all material respects.Closing; (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing.Agreement, there shall not have occurred a Company Material Adverse Effect; and (fd) The Company Parent shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly received a certificate executed by the applicable signatory or signatories specified Company’s Chief Executive Officer and Chief Financial Officer certifying on behalf of the Company that the conditions set forth in Section 1.3(bclauses (a), if any(b) and (c) of this Section 6.3 are duly satisfied immediately prior to the Closing.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction fulfillment (or, to the extent permitted by applicable Law, waiver by Parent) at or prior to the Closing of each of the following additional conditions, any of which may be waived, in writing, exclusively by Parent: (a) The Fundamental Representations Each of SpinCo and the Company, other than Section 4.3, Company shall be true each have performed and correct complied in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on with the obligations, covenants and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; (b) all representations and warranties made by the Company set forth in Article IV and Article V (other than Section 4.1(a), Section 4.2, Section 4.6, the first sentence of Section 5.1, Section 5.2, Section 5.3, Section 5.14(a), Section 5.22, and Section 5.24), without giving effect to materiality, “Company Material Adverse Effect”, “SpinCo Material Adverse Effect” or similar qualifications, shall be true and correct in all respects at and as of the date hereof and as of the Closing DateDate as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date), except to the extent the failure of such representations and warranties to be true and correct (without giving effect to materiality, “Company Material Adverse Effect”, “SpinCo Material Adverse Effect” or similar qualifications) would not reasonably be expected to have, individually or in each case the aggregate, a SpinCo Material Adverse Effect or Company Material Adverse Effect. The representations and warranties made by the Company set forth in Section 4.1(a), Section 4.2, Section 4.6, the first sentence of Section 5.1, Section 5.2 and Section 5.22 shall be true and correct in all material respects.respects at and as of the date hereof and as of the Closing Date as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date). The representations and warranties made by SpinCo set forth in Section 5.3, Section 5.14(a) and Section 5.24 shall be true and correct in all respects at and as of the date hereof and as of the Closing Date as though such representations and warranties were made at and as of the Closing Date (other than in the case of the representations and warranties set forth in Section 5.3 and Section 5.24 for deviations that are de minimis in the aggregate, and except in the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date); (c) The Company shall have delivered to Parent a certificate, certificate dated as of the Closing Date signed by an executive officer of the Company and dated as to the effect that each of the Closing Date, certifying as to the matters conditions set forth in Section 8.1(b), Section 8.2(g), Section 8.3(a) ), and Section 8.3(b).) have been satisfied; (d) The SpinCo and the Company Stockholder Approval (or the applicable Subsidiary thereof) shall have been obtained.executed and delivered each of the applicable Transaction Documents, and to the extent applicable, performed and complied with the obligations, covenants and agreements to be performed thereunder prior to the Effective Time in all material respects, and each such agreement shall be in full force and effect; (e) No Company Material Adverse Effect Parent shall have occurred since received the date of this Agreement and be continuing.Parent Merger Tax Opinion from Weil; (f) The Company shall have delivered, or caused to be deliveredhave, or shall stand ready have caused SpinCo to, deliver to deliver all Parent (i) a certificate of SpinCo, dated as of the certificates, instruments, Contracts Closing Date and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(bprepared in accordance with Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), duly executed stating that interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations Section 1.897-2(h) (which notice shall be mailed to the IRS by SpinCo following the applicable signatory or signatories specified Closing in accordance with Treasury Regulations Section 1.3(b1.897-2(h)), if anyin each case in form and substance reasonably acceptable to Parent.

Additional Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be are subject to the satisfaction fulfillment at or prior to the Closing of each of the following additional conditions, any or all of which may be waived, waived in writing, exclusively writing in whole or part by Parent, to the extent permitted by applicable Law: (a) The Fundamental Representations Each of the Company, other than Section 4.3, representations and warranties of or in respect of the Company and the Key Stockholder contained in this Agreement shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on and as of the date of this Agreement and on shall be true and correct (except that where any statement in a representation or warranty expressly includes a “Material Adverse Effect” qualification or other materiality and Knowledge qualifications, such statement shall be true and correct in all respects giving effect to such standards) as of the Closing Date as though made on and as of the Closing Date (Date, except to the extent that any such representation for representations and warranty expressly speaks warranties which address matters only as of an earlier a particular date, in which case such representation representations and warranty warranties shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or complied in all material respects with all agreements and covenants conditions contained herein required by this Agreement to be performed or complied with by it at or them prior to or on the Closing Date, in each case in all material respects. (c) (i) The Company shall have delivered to Parent a certificate, signed by an executive officer of in substantially the Company and form attached hereto as Exhibit D-1, dated as of the Closing Date, signed by the Chief Executive Officer, the President and the Director of Finance of the Company, certifying as to the matters set forth fulfillment of the conditions specified in Section 8.3(a6.2(a) and Section 8.3(b(b); and (ii) the Key Stockholder shall have delivered to Parent a certificate, in substantially the form attached hereto as Exhibit D-2, dated as of the Closing Date, signed by the Key Stockholder. (d) The Company Stockholder Approval There shall not have been obtainedoccurred a Material Adverse Effect on the Company. (e) No There shall be no pending or threatened Action (i) challenging or seeking to restrain or prohibit the consummation of the Transactions; (ii) relating to the Transactions and seeking to obtain from Parent, Merger Sub or the Company any damages that may be material to Parent, Merger Sub or the Company; (iii) seeking to prohibit or limit in any respect Parent’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of the Company or the Surviving Corporation; (iv) which would have a Material Adverse Effect shall on the Company or a material adverse effect on Parent’s ability to operate the Surviving Corporation’s business, or to own, use and enjoy the Property of the Surviving Corporation, after the Merger; or (v) which, if adversely determined, could have occurred since a Material Adverse Effect on the date of this Agreement and be continuingCompany or, after the Merger, Parent or the Surviving Corporation. (f) The Company, the Escrow Agent and the Stockholder Agent shall have entered into the Escrow Agreement, which shall be in full force and effect as of the Closing Date. (g) The Key Stockholder and EVault, Inc. shall have entered into the Voting Agreement, which shall be in full force and effect as of the Closing Date. (h) Stockholders holding 100% of the capital stock of the Company shall have deliveredapproved this Agreement and the Merger and the transactions contemplated thereby. No holder of capital stock of the Company shall have exercised or given notice of its intent to exercise appraisal rights or dissenter rights in accordance with applicable Law. (i) The Company and all Stockholders shall have delivered to Parent certificates representing all shares of the Company Stock, including shares issued upon the exercise of any Company Options on or prior to the Closing Date. (j) At the Closing, the Company shall have delivered or caused to be delivered, or shall stand ready delivered to deliver Parent all of the certificatesagreements, instruments, Contracts instruments and other documents specified required to be delivered by it hereunderto Parent pursuant to the foregoing provisions of this Section 6.2, including copies together with: (i) each Consent listed (or required to be listed) on Section 3.7 of the documents Disclosure Schedules; (ii) an affidavit described in Code Section 1445(b)(3); (iii) the written and, other than with reference to be delivered the consummation of the Merger, unconditional resignations of all of the current members of the board of directors and of the current officers of the Company, effective as of the Effective Time; (iv) the Capitalization and Payment Table, updated as of the Closing Date to the reasonable satisfaction of Parent; (v) a legal opinion of Xxxxx Xxxxxx Xxxxxxxx LLP, counsel to the Company, in form and substance reasonably satisfactory to Parent and its legal counsel; (vi) certificates dated as of a date within a reasonable period of time prior to the Closing Date as to the good standing of the Company, executed by the appropriate officials of the State of Washington and each other jurisdiction in which the Company pursuant is licensed or qualified to do business as a foreign corporation, as specified in Section 1.3(b)3.1 of the Disclosure Schedules; (vii) agreements appointing the Stockholder Agent as agent and attorney-in-fact, executed each Equity Holder and B3 Consulting, in form and substance reasonably satisfactory to Parent and its legal counsel; (viii) a certificate signed by the secretary of the Company certifying, as complete and accurate as of the Closing Date, (i) the complete Organizational Documents of the Company, (ii) the resolutions or actions of each of the stockholders and the boards of directors of the Company approving the execution, delivery and performance of this Agreement and the Related Agreements and the consummation of the Transactions, (iii) the incumbency and signatures of the officers of the Company executing this Agreement and the Related Agreements, as applicable, and (iv) such other matters as Parent may reasonably request; (ix) the Option Amendment and Consent between the Company and each Cashed Out Option Holder that holds Company Options in substantially the form attached hereto as Exhibit E; (x) the Note and Warrant Amendment and Consent between the Company and each Note Holder in substantially the form attached hereto as Exhibit F; (xi) an Acknowledgment and Consent of B3 Consulting in substantially the form attached hereto as Exhibit G; (xii) an acknowledgment of receipt of payment from Xxxxxxxxx Xxxxxxxx with respect to the amount due to him in his capacity as a Special Payee, in form and substance reasonably acceptable to Parent; (xiii) a counterpart signature page to this Agreement, duly executed by any holder of a Company Option other than Cashed Out Option Holder who exercises a Company Option between the applicable signatory date hereof and the Effective Time, pursuant to which such holder will become a party to this Agreement as an Equity Holder; and (xiv) such other documents and instruments as Parent may reasonably request, each in form and substance satisfactory to Parent and its legal counsel and executed by the Company, the Stockholder Agent, the Equity Holders or signatories specified in Section 1.3(b), if anythe Special Payees.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, exclusively by Parent: (ai) The Fundamental Representations of the Company, other than Section 4.3, Company shall be true and correct in all material respects other than de minimis inaccuracies (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and ii) all other representations and warranties of the Company set forth in Article IV III hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except in the case of this clause (ii) where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, in each case in all material respects. (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing. (f) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if any.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, additional conditions (any of which may be waived, in writing, exclusively by Parent:): (ai) The Fundamental Representations the representations and warranties of the Company, other than Company contained in Section 4.3, 3 that are not qualified by materiality shall have been true and correct in all material respects on the date they were made and shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on and as of the date of this Agreement and on as of the Closing Date as though such representations and warranties were made on and as of the Closing Date such date (except to the extent that other than any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth made only as of a specified date, which shall be true and correct in all material respects as of such date). The representations and warranties of the Company contained in Section 4.3 3 that are qualified by materiality shall have been true and correct in all respects on the date they were made and shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though such representations and warranties were made on and as of the Closing Date such date (except to the extent that other than any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to made only as of a specified date, which shall be so true and correct, individually or correct in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect.all respects as of such date); (bii) The the Company shall have performed or and complied in all material respects with all agreements covenants and covenants required by obligations under this Agreement required to be performed or and complied with by it at or the Company prior to the Closing; (iii) since the date hereof, there shall not have occurred and be continuing a Material Adverse Effect; (iv) there shall be no Action pending or threatened in writing against Parent or any of its Affiliates, or against the Company or any of its Affiliates, seeking to make the Merger or any other Transactions illegal or prohibit or prevent the consummation of the Merger or any other Transactions, or otherwise seeking material damages in connection therewith; (v) following compliance by the Company with the notification provisions of Part 13 of the Massachusetts Law and the expiration of the time period for demanding appraisal thereunder, the number of Dissenting Shares shall not exceed five percent (5%) of the number of issued and outstanding Company Capital Stock; (vi) each of Xxxxx Xxxxx, Xxxx Xxxx, the Project Managers, and eighty percent (80%) of the Identified Employees will be Continuing Employees after the Closing. All such Continuing Employees (A) shall have satisfied Parent’s customary employee background investigation (which includes the absence of a record of any criminal conviction in all applicable court and police records); provided that, Parent and the Company shall work together in good faith to complete such customary employee background investigation and any such efforts shall not delay the Closing Dateor require either Parent nor the Company to incur any material unreimbursed cost or expense, and (B) shall be eligible to work in the jurisdiction of his or her employing entity; (vii) the Company shall have delivered to Parent proprietary information and inventions assignment agreements, in a form satisfactory to Parent, duly executed by each case of Xxxxx Xxxxx and Xxxx Xxxx and which are in all material respects.full force and effect; (cviii) The all accrued, unused vacation days of the Continuing Employees as of the Closing Date shall be treated as Current Liability in the calculation of Working Capital; from and after the Closing Date through December 31, 2021, Parent shall maintain the Company’s pre-Closing holiday, sick leave, and vacation policies; and following December 31, 2021, Parent shall give the Continuing Employees credit for years of service with the Company under Parent’s vacation policy; (ix) the Company shall have delivered to Parent a certificatecertificate from the Company, signed validly executed by an executive officer the President of the Company for and on behalf of the Company, to the effect that, as of the Closing, the conditions set forth in Section 2(c)(i), Section 2(c)(ii) and Section 2(c)(iii) have been satisfied; (x) the Company shall have delivered to Parent copies of the charter and by-laws of the Company, and the resolutions of the Stockholders, and the Company Board, approving this Agreement and authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, certified to be accurate and complete and in full force and effect as of the Closing; (xi) the Company shall have delivered to Parent a certificate of good standing (or equivalent) of each of member of the Company Group issued by the Secretary of State (or other appropriate office) of the state of such entity’s formation or incorporation, as applicable; (xii) the Company shall have delivered to Parent copies of: (A) the audited balance sheets of the Company as of December 31, 2020, and the related statements of earnings and comprehensive income, members’ equity and cash flows for the fiscal periods then ended, and the related notes to such financial statements; (B) the reviewed balance sheet of the Company and dated as the related statements of earnings and comprehensive income, members’ equity and cash flows for the first quarter of 2021; and (C) the pro-forma balance sheet of the Company and the related statements of earnings and comprehensive income and members’ equity for period starting on January 1, 2021 to the full month periods ended prior to the month that is inclusive of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b).; (dxiii) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing. (f) The Company shall have delivereddelivered to Parent the Estimated Closing Statement in accordance with Section 1(h)(ii); (xiv) the Company shall have delivered to Parent the schedules setting forth all Repaid Indebtedness and Transaction Expenses, in accordance with Section 1(g); (xv) the Company shall have delivered to Parent payoff letters for the Repaid Indebtedness and lien and security release documentation related thereto, each, in form and substance reasonably satisfactory to Parent and Merger Sub; (xvi) the Company shall have delivered to Parent evidence reasonably satisfactory to Parent that any Indebtedness that is not Repaid Indebtedness is free of any unresolved events of default and breaches (including past due payments, interest or penalties), evidenced by written acknowledgement thereof from the holders of any such Indebtedness as of Closing; (xvii) the Company shall have delivered to Parent evidence reasonably satisfactory to Parent that none of the assets or properties of the Company Group shall be subject to any Liens, other than Permitted Liens; (xviii) the Company shall have delivered to Parent all third-party consents and approvals (on terms reasonably satisfactory to Parent) that are necessary for the consummation of the transactions contemplated hereby and the operation of the Business after Closing, or caused that are required in order to be delivered, prevent a breach of or shall stand ready default under any agreement to deliver all which any member of the certificatesCompany Group is a party, instrumentsin each case as set forth on Appendix D; (xix) the Company shall have delivered to Parent all books and records pertaining to the business of the Company Group, Contracts including all corporate and other records, books of account, contracts, agreements and such other documents specified or certificates as Parent may reasonably request including minute books and records (if any); (xx) the Company shall have delivered to be delivered Parent resignations of the directors and officers (or equivalent) of each member of the Company Group (except for Xxxxx Xxxxx, Xxxx Xxxx and Xxxxxxx Xxxxxx to the extent otherwise identified in writing by it hereunderParent prior to the Closing Date), effective at or prior to the Closing, including copies (A) statements from such directors and officers (or equivalent) of the documents Company Group to be delivered by the effect that all salaries, pensions, bonuses, exit payments or similar contractual obligations of the Company pursuant Group have been settled prior to Section 1.3(b)the Closing or will be settled concurrently with the Closing and (B) waivers by such directors and officers (or equivalent) of the Company Group of any claims against the Company Group, as applicable; (xxi) the Company shall have delivered to Parent the Escrow Agreement, duly executed by the applicable signatory or signatories specified Sellers’ Representative and the Escrow Agent, which such Escrow Agreement shall be in full force and effect; (xxii) the Company shall have delivered to Parent the Payments Agreement, duly executed by the Sellers’ Representative and the Payments Administrator, which such Payments Agreement shall be in full force and effect; (xxiii) each Optionholder shall have delivered to the Payments Administrator, the Option Cancelation Agreement, duly executed by such Optionholder, which such Option Cancelation Agreement shall be in full force and effect; (xxiv) the Company shall have delivered to Parent evidence reasonably satisfactory to Parent that all regulatory approvals, licenses and permits have been received from each jurisdiction in which the Company presently has operations such that Parent shall be legally entitled to continue to provide the same products and services that the Company provided before the consummation of the transactions contemplated hereby; and (xxv) Parent shall have received a certificate prepared in accordance with the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 1.3(b), if any897(c)(2) of the Code.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, exclusively by Parent: (ai) The Fundamental Representations of the Company, other than Section 4.3, Company shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and ii) all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier date), except in the case of this clause (ii) where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, in each case in all material respects. (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing. (f) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if any.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations Unless waived by Parent in accordance with Section 8.5, the obligation of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction fulfillment at or prior to the Closing of each Date of the following additional conditions, any of which may be waived, in writing, exclusively by Parent: (a) The Fundamental Representations Company 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; (i) the representations and warranties of the CompanyCompany contained in the first, other than second, third, fourth and sixth sentences of Section 4.33.1 (Organization and Qualification; Subsidiaries) and in Sections 3.2 (Organizational Documents), 3.3 (Capitalization), 3.4(a) (Authority), and 3.24 (State Takeover Laws) shall be true and correct in all material respects (without giving effect to except for representations and warranties in any limitation such sections qualified as to “materiality” materiality or “a Company Material Adverse Effect” or any similar limitation contain herein, which shall be true and correct in all respects) on at and as of the date of this Agreement and on as of the Closing Date as though made on and or as of the Closing Date (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); ) and (ii) the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date Article III of this Agreement and on as of other than those specified in the Closing Date as though made on and as of the Closing Date preceding clause (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof i) shall be true and correct (without giving effect to any limitation qualification as to “materiality” materiality or “a Company Material Adverse Effect” or any similar limitation contained herein) on at and as of the date of this Agreement and on as of the Closing Date as though made on and or as of the Closing Date (except to the extent that any such representation and warranty expressly speaks made as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except except, with respect to the representations and warranties referred to in this clause (ii), where the failure of any such representations and warranties of the Company to be so true and correctcorrect (without giving effect to any qualification as to materiality or a Company Material Adverse Effect) would not, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect.; (c) Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to the effect that the conditions in clauses (a) and (b) of this Section 7.3 above have been satisfied; (d) Parent shall have received an opinion (reasonably acceptable in form and substance to Parent) from Xxxxxxx Xxxxx LLP, 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, Xxxxxxx Xxxxx LLP is unable to deliver such opinion; (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 the Company and the Company Subsidiaries that constitutes or is reasonably likely to constitute a Company Material Adverse Effect; (f) Parent shall have received the statement required to be delivered by the last sentence of Section 6.13; (g) The number of Appraisal Shares for which demands for appraisal have been made and not been withdrawn shall not exceed 10% of the outstanding shares of Company Common Stock immediately prior to the Effective Time; and (h) The Company shall have performed taken all actions necessary under the Company’s 2004 Stock Incentive Plan, as amended, to cancel as of the Effective Time, in accordance with such Stock Incentive Plan and applicable law, and without payment of any consideration, all Company Stock Options and Company SARs issued under such Stock Incentive Plan that as of the Effective Time have an exercise price or complied with all agreements base price, respectively, for Company Common Stock in excess of the greater of (i) $6.05 and covenants required by this Agreement to be performed or complied with by it at or (ii) the closing stock price of Company Common Stock on NASDAQ on the last Trading Day immediately prior to the Closing Date, in each case in all material respectson a per share basis. (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing. (f) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if any.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing fulfillment of each of the following additional conditions, any one or more of which may be waived, waived in writing, exclusively writing by Parent, provided that any such waiver shall preclude Parent from subsequently pursuing any such waived rights: (a) The Fundamental Representations representations and warranties of the Company, other than Section 4.3, Company contained in this Agreement (without regard to any materiality exceptions or provisions therein) shall be true and correct correct, in all material respects respects, as of the Effective Time, with the same force and effect as if made at the Effective Time, except, (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain hereini) on for changes specifically permitted by the terms of this Agreement and (ii) that the accuracy of the representations and warranties that by their terms speak as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall or some other date will be true and correct determined as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or and complied in all material respects with all agreements agreements, obligations, covenants and covenants conditions required by this Agreement to be performed or complied with by it at on or prior to the Closing Date, in each case in all material respects. (c) As of the Effective Time, the Company Common Stock shall not be held by more than 35 non-accredited investors, as determined in accordance with Regulation D under the Securities Act. (d) As of the last day of the month immediately preceding the Closing, the net book value of the Company calculated in accordance with GAAP, as adjusted to exclude the effect of deferred revenue from the calculation thereof, shall be an amount equal to at least the difference between (i) the net book value derived from the 2001 Financial Statements (as defined in Section 7.2(q)), as adjusted to exclude the effect of deferred revenue from the calculation thereof, less (ii) $300,000 (the "Net Book Value Threshold"); provided, however, that Parent may in its sole discretion elect to proceed with the Merger and deduct from the Escrow Shares that number of shares equal to the quotient obtained by dividing (y) the deficiency between such adjusted net book value and the Net Book Value Threshold by (z) the Parent Closing Price. (e) The Company shall have furnished certificates of its President and Treasurer or Chief Financial Officer to evidence compliance with the conditions set forth in Section 7.2(a) and (b) of this Agreement. (f) Parent and Merger Sub shall have received an opinion of Company Counsel, dated as of the Effective Time, substantially in the form of Exhibit F attached hereto and an opinion of California counsel to the Company opining as to the enforceability of the Agreement under California law. (g) Any consents, approvals, notifications, disclosures, and filings and registrations listed in Schedule 3.3 of the Company Disclosure Statement shall have been obtained or made. (h) Xxxx Xxxxxxx shall execute and deliver an employment agreement with Parent for a term of one year in the form attached hereto as Exhibit D. (i) The Shareholder Representative shall have executed and delivered the Escrow Agreement; (j) The Shareholder Representative shall have executed and delivered the Earn-out Escrow Agreement; (k) Xxxxxx Xxxxxx and no less than seventy percent of the employees of TCT shall have executed and delivered the offer letter in the form of Exhibit K. For purposes hereof, the execution and delivery by Xxxxxx Xxxxxx of the offer letter in the form of Exhibit K and the execution and delivery by Xxxx Xxxxxxx of the employment agreement in the form of Exhibit D shall be included for purposes of counting the seventy percent of the employees of TCT required to satisfy the condition of this Section 7.2(k). (l) Each of Xxxx Xxxxxxx and Xxxxxx Xxxxxx shall have executed and delivered the Employee Confidential Information And Inventions Agreement substantially in the form of Exhibit L. (m) Each of the Managers shall executed and deliver the non-competition agreements in the form of Exhibit M hereto providing for a term of one year for each except with respect to Xxxx Xxxxxxx and Xxxxxx Xxxxxx, which shall have term of five years and three years, respectively. (n) Each of the Managers shall have executed and delivered a release, substantially in the form attached hereto as Exhibit N. (o) Each Optionee shall have executed and delivered an acknowledgement agreeing to the changes in the Company Stock Plan made pursuant to Section 5.10. (p) Neither the Company nor any of its Subsidiaries shall have been named as a party to any material Action before any Government Entity. (q) The Company shall have obtained and delivered to Parent a certificate, signed by an executive officer copy of the audited consolidated balance sheet of the Company as of December 31, 2001, and the related audited consolidated income statement and statement of cash flows for the year ended December 31, 2000 and 1999 (including, any related notes thereto and the reports of Xxxxx Xxxxxxxx & Co. with respect thereto) (the "2001 Financial Statements"). (r) Each of the Managers shall have delivered a Lock-up Agreement in the form of Exhibit D with respect to the Stock Consideration and a lock-up agreement in the form of Exhibit E with respect to the Assumed Options. (s) Parent shall have received an opinion of Parent Counsel dated as of the Closing DateDate and based on customary representations from Company and Parent, certifying that the Merger will be treated as a "reorganization" within the meaning of Section 368(a) of the Code and Parent, Merger Sub and the Company will be parties to the matters set forth in Section 8.3(a) and Section 8.3(b)that reorganization; provided, however, if Parent Counsel does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Company Counsel renders such an opinion to Parent. (dt) The Company Stockholder Approval There shall not have been obtained. (e) No occurred, since the date hereof, any event or change of circumstances that has had or is reasonably likely to have a Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuingEffect. (f) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if any.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing fulfillment of each of the following additional conditions, any one or more of which may be waived, waived in writing, exclusively writing by Parent: (a) (i) The Fundamental Representations representations and warranties of the CompanyCompany set forth in Section 3.2, other than Section 4.33.4, Section 3.5 and Section 3.27 shall be true and correct in (disregarding all material respects (without giving effect to any limitation qualifications or limitations as to “materiality” or materially”, “Company Material Adverse Effect” or any and words of similar limitation contain hereinimport set forth therein) on in all material respects at and as of the date of this Agreement and on as of the Closing Date Effective Time as though if made on at and as of such time (or, in the Closing Date (except to the extent case of those representations and warranties that any such representation and warranty expressly speaks are made as of an earlier datea particular date or period, in which case such representation and warranty shall be true and correct as of such earlier datedate or period); (ii) the representations and warranties of the Company set forth in Section 4.3 3.11(i) and Section 3.12, shall be true and correct in all respects on as of the date of this Agreement and as of the Effective Time as if made at and as of such time; (iii) the representations and warranties set forth in Section 3.6 shall be true and correct in all respects at and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date)Effective Time, except for any de minimis inaccuraciesinaccuracies that do not, individually or in the aggregate, require payments pursuant to Article II in excess of $1,000,000; and all (iv) other than the representations and warranties of the Company set forth in Article IV hereof Section 3.2, Section 3.4, Section 3.5, Section 3.6, Section 3.11(i), Section 3.12 and Section 3.27, the representations and warranties of Company contained in this Agreement shall be true and correct (without giving effect to any limitation disregarding all qualifications or limitations as to “materiality” or materially”, “Company Material Adverse Effect” or any and words of similar limitation contained hereinimport set forth therein) on at and as of the date of this Agreement and on as of the Closing Date Effective Time as though if made on at and as of such time (or, in the Closing Date (except to the extent case of those representations and warranties that any such representation and warranty expressly speaks are made as of an earlier datea particular date or period, in which case such representation and warranty shall be true and correct as of such earlier datedate or period), except where the failure of such representations and warranties of the Company to be so true and correct, individually or correct would not result in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company shall have performed or and complied in all material respects with all agreements and covenants obligations required by this Agreement to be performed or complied with by it at on or prior to the Closing Date, in each case in all material respects. (c) The Company There shall not have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained. (e) No occurred any Company Material Adverse Effect shall have occurred since between the date of this Agreement and be continuingthe Closing Date. (fd) The Company shall have deliveredfurnished a certificate of Company executed by one of its executive officers to evidence compliance with the conditions set forth in Sections 7.2(a), or caused (b) and (c) of this Agreement. (e) Company shall have furnished a certificate of Company, duly completed and executed pursuant to be delivered, or shall stand ready to deliver all Sections 1.897-2(h) and 1.1445-2(c) of the certificatesTreasury Regulations, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies certifying that the shares of Company Common Stock are not “United States real property interests” within the meaning of Section 897(c) of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if anyCode.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and the Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by ParentParent or the Merger Sub: (a) The Fundamental Representations representations and warranties of the Company, other than Section 4.3, Company as set forth in this Agreement that are qualified as to materiality shall be true and correct complete in all respects and each such representation or warranty that is not so qualified shall be true and complete in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on and respects, in each case as of the date of this Agreement hereof and on as of the Closing Date as though made on at and as of the Closing Date (except to the extent that any such representation those representations and warranty expressly speaks warranties which address matters only as of an earlier date, in which case such representation and warranty a particular date shall be have been true and correct as of only on such earlier date); . Parent and the representations Merger Sub shall have received a certificate with respect to the foregoing, and warranties certifying that no Company Material Adverse Effect shall have occurred since the date hereof and be continuing, signed on behalf of the Company set forth in Section 4.3 shall be true and correct in all respects on and as by the Chief Executive Officer of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse EffectCompany. (b) The Company and the Company Subsidiaries shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it them at or prior to the Closing Date except to the extent that such covenants are qualified by terms such as “material” or “Material Adverse Effect,” in which case the Company and the Company Subsidiaries shall have performed and complied with all such covenants in all respects prior to the Closing Date and that the Company and the Company Subsidiaries shall have performed and complied with all covenants and agreements in Section 2.5(a) in all respects prior to the Closing Date, in each case in all material respectsand Parent and the Merger Sub shall have received a certificate to such effect signed on behalf of the Company by the Chief Executive Officer of the Company. (c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b). (d) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement hereof and be continuing. (d) No litigation shall have commenced and be continuing or have been threatened in writing that seeks to prevent, enjoin, alter or delay consummation of the Merger or the other transactions contemplated under this Agreement, or which seeks material damages in connection with the Merger or the other transactions contemplated hereby or which seeks to limit or prohibit ownership or operation by the Company, the Company Subsidiaries, Parent or any of its Subsidiaries of any of their respective businesses or assets. (e) All consents, permits, approvals and authorizations of, and filings with or notifications to, any Governmental Entity and any other Person required for the consummation of the Merger and the other transactions contemplated hereby shall have been obtained or made and be in effect at the Effective Time. (f) The Company Parent shall have deliveredobtained the Banking Regulatory Approvals and such approvals shall impose no burdensome conditions on the operations of Parent or the Company from and after the Effective Time. (g) Parent shall have received from the Company an opinion from Xxxxxxx & Xxxxxx, or caused the Company’s outside patent legal counsel, that the Company’s and the Company Subsidiaries’ products, services and business do not infringe any patents issued to DE Technologies, such legal opinion to be delivered, or shall stand ready in form and substance satisfactory to deliver all Parent. (h) The Net Tangible Asset Value of the certificates, instruments, Contracts and other documents specified to be delivered Company as shown on the Closing Balance Sheet accepted by it hereunder, including copies of the documents to be delivered by the Company Parent pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if any5.1(f) shall not be less than $50,000,000.

Additional Conditions to the Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be transactions contemplated by this Agreement are subject to the satisfaction at of, or prior to waiver by such parties of, the following conditions on or before the Closing of each of the following conditions, any of which may be waived, in writing, exclusively by ParentDate: (a) The Fundamental Representations the representations and warranties of the Company, other than Section 4.3, Company contained in this Agreement shall be true and correct accurate in all material respects as of the Closing, with the same force and effect as if made as of the Closing (without giving effect except to the extent any limitation as to “materiality” such representation or “Company Material Adverse Effect” or any similar limitation contain herein) on and warranty speaks as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that or any such representation and warranty expressly speaks as of an earlier other specific date, in which case such representation and or warranty shall be true and correct have been accurate in all respects as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct in all respects on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for that any de minimis inaccuracies; and all other inaccuracies in such representations and warranties will be disregarded for purposes of this Section 8.3 if such inaccuracies (considered collectively) do not have a Material Adverse Effect as of the Company set forth in Article IV hereof shall be true Closing, it being understood that, for purposes of determining the accuracy of such representations and correct (without giving effect to any limitation as to warranties, all “materiality” or “Company Material Adverse Effect” and other qualifications using the term “material”, “materially”, “in any material respect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, “in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of all material respects” in such representations and warranties of the Company to will be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect.disregarded; (b) The Company shall have performed or complied with in all material respects all of the covenants and agreements and covenants required by this Agreement to be performed or complied with by it at or under this Agreement prior to the Closing Date, in each case in all material respects.Closing (c) The Company shall have delivered to Parent each of the following: (i) a certificate, signed by certificate from an executive officer of the Company and Company, dated as of the Closing Date, certifying as to stating that the matters set forth applicable conditions specified in Section Sections 8.3(a) and Section 8.3(b)(b) have been satisfied; (ii) a certified copy of the resolutions duly adopted by the Company Board authorizing the execution, delivery and performance of this Agreement and the consummation of all transactions contemplated hereby; (iii) a true and correct copy of the Company's certificate of incorporation certified by the Secretary of State of Delaware, dated no more than five (5) Business Days prior to the Closing Date; (iv) a true and correct copy of the Company's bylaws, together with all amendments in effect as of the Closing Date; (v) a certificate of good standing from the Secretary of the State of Delaware with respect to the Company, dated no more than five (5) Business Days prior to the Closing Date. (d) The Company Stockholder Approval and the Escrow Representative shall have been obtained.delivered to Parent a copy of the Escrow Agreement executed by the Company and the Escrow Representative; (e) No Company There shall have been no Material Adverse Effect shall have occurred since the date of this Agreement and be continuing.Agreement; (f) No more than 20% of the employees of the Company and its Subsidiaries listed in Section 8.3(f) of the Disclosure Schedules shall have (i) terminated their employment with the Company or its Subsidiaries; or (ii) tendered notice of termination of their employment with the Company or its Subsidiaries (including any termination with an effective date after the consummation of the transactions contemplated by this Agreement); (g) Each of the Key Employees to whom Parent offers employment with the Surviving Corporation (provided that the terms of such employment are not less favorable in any respect to such Key Employee than the terms included in the form of Offer Letter presented to such Key Employee prior to the execution of this Agreement) shall have entered into such an Offer Letter with Parent or the Surviving Corporation, such Offer Letters shall be in full force and effect, each of the Key Employees shall be employed by the Company and none of the Key Employees shall have tendered notice of termination of their employment with the Company or its Subsidiaries (including any termination with an effective date after the consummation of the transactions contemplated by this Agreement); and (h) The Company shall have delivered, or taken and caused Amalfi Cayman to be delivered, or shall stand ready take all actions necessary to deliver all of consummate the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered transactions contemplated by the Company pursuant to Section 1.3(b), duly executed by Assignment Agreement and the applicable signatory or signatories specified in Section 1.3(b), if anyIP Purchase Agreement.

Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing fulfillment of each of the following additional conditions, any one or more of which may be waived, waived in writing, exclusively writing by Parent: (a) The Fundamental Representations representations and warranties of Company and the CompanyCompany Equityholders set forth in this Agreement and in the Ancillary Agreements that are qualified by materiality or Company Material Adverse Effect shall be true and correct, other than Section 4.3, and the representations and warranties of Company and the Company Equityholders set forth in this Agreement and the Ancillary Agreements that are not so qualified shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contain herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and respects, in each case, as of the Closing Date (except to the extent that any such representation representations and warranty expressly speaks warranties speak as of an earlier datea specific date or as of the date hereof, in which case such representation representations and warranty warranties shall be so true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be or true and correct in all respects on and material respects, as the case may be, as of such specific date or as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier datehereof, in which case such representation and warranty shall be true and correct as of such earlier daterespectively), except for any de minimis inaccuracies; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect. (b) The Company and the Company Equityholders shall have performed or and complied in all material respects with all agreements and covenants obligations required by this Agreement and the Ancillary Agreements to be performed or complied with by it at any of them on or prior to the Closing Date, in each case in all material respects. (c) Company and New Mountain shall have furnished a certificate of Company executed by one of its officers to evidence its compliance with the conditions set forth in Section 7.2(a) and (b) of this Agreement. (d) The approvals, consents, notifications, waivers and releases from and to third parties set forth in Schedule 7.2(d) of the Company Disclosure Statement shall have been made or obtained, in a manner reasonably satisfactory in form and substance to Parent and its counsel, and no such approval, consent, notification, waiver or release shall have been revoked or rescinded. (e) Parent shall have received (i) a certificate of good standing from the jurisdiction of organization of Company dated no more than five (5) business days prior the Closing Date and (ii) a certificate from the Secretary of Company certifying as to (x) the incumbency and signatures of the officers of Company executing and delivering this Agreement and the Ancillary Agreements and (y) the resolutions, consents and other approvals of the Board and the stockholders of the Company with respect to this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby; (f) The New Mountain Advisory Agreement shall have been terminated. (g) Company will have delivered to Parent a certification (in such form as may be reasonably requested by counsel to Parent) conforming to the requirements of Treasury Regulations 1.1445-2(c)(3) and 1.897-2(h), in the form attached as Exhibit C. (h) Each of the Ancillary Agreements to be executed and delivered by Company and/or the Shareholder Representative on or prior to the Closing Date shall have been executed and delivered by Company and/or the Shareholder Representative. (i) Company Equityholders holding shares of Company Common Stock, Company Warrants and Company Options representing at least eighty percent (80%) of the Company Common Stock outstanding as of the Closing Dates on a fully-diluted basis hall have executed and delivered a Joinder Agreement. (j) Parent and Merger Sub shall have obtained the proceeds of the Financing contemplated by the Commitment Letter. (k) Company shall have delivered to Parent a certificate, signed the Audited Financial Statements which shall be accompanied by an executive officer unqualified audit opinion from Company’s independent public accountants. Based upon the information contained in such Audited Financial Statements a calculation shall be derived to calculate consolidated earnings before, interest, taxes, depreciation and amortization for 2005, as determined in accordance with Schedule 7.2(k) of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(aDisclosure Statement (“EBITDA”) and Section 8.3(b)EBITDA shall be at least $11,700,000. (d) The Company Stockholder Approval shall have been obtained. (e) No Company Material Adverse Effect shall have occurred since the date of this Agreement and be continuing. (f) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.3(b), duly executed by the applicable signatory or signatories specified in Section 1.3(b), if any.