Common use of Agreements and Documents Clause in Contracts

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in : the form of Exhibit KEscrow Agreement, executed by the Persons identified on Exhibit L Shareholders' Agent and by any the other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit Nparties thereto; Releases, executed by each Releasor; PIIAs executed by each Person accepting an offer of employment from Parent or one of its current or future affiliates, including the individuals identified on Exhibit E; (d) Noncompetition Agreements Company; an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and reasonably satisfactory in the form of Exhibit Fand content to Parent, executed by Xxxx Xxxxxxxxx'x Survivor's Trust and the individuals identified on Exhibit E; (e) a Release Xxxxxxx X. Xxxxx Separate Property Trust, landlord of the Company's facility located in the form of Exhibit OMountain View, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment California; agreements, attached hereto as in form and content reasonably satisfactory to Parent, terminating those certain agreements identified in Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) I; a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.5 and 6.10 6.11 have been duly satisfied (the “"Company Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying as to the Company’s 's current Certificate of Incorporation, Bylaws Incorporation Documents and the resolutions of the Company’s 's board of directors and stockholders shareholders approving and adopting this Agreement, the principal terms of the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closinghereby; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the CompanyAcquired Corporations, effective as of the Effective Time; the Agreement of Merger, together with the requisite accompanying officer's certificate, executed by the Company; written acknowledgments pursuant to which the Company's Counsel and any financial advisor, accountant or other Person who performed services for or on behalf of the Acquired Corporations, or who is otherwise entitled to any compensation from the Acquired Corporations, in connection with this Agreement or any of the transactions contemplated by this Agreement, acknowledges: (i) the total amount of fees, costs and expenses of any nature that is payable or was paid to such Person in connection with this Agreement and any of the transactions contemplated by this Agreement (which amount shall include a reasonable amount for the fees and expenses that such Person expects to incur following the Closing); and (ii) that it is not (and will not be) owed any other amount by any of the Acquired Corporations with respect to this Agreement or the transactions contemplated by this Agreement; a legal opinion executed by Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx in the form of Exhibit J; a scope document that has been mutually agreed to by Parent and the Company setting forth the Milestones; a spreadsheet, duly certified by an officer of the Company, (i) identifying each of the shareholders of the Company as of immediately prior to the Closing and (ii) setting forth the Merger Consideration to which each such shareholder is entitled to receive pursuant to Section 1.5; and the FIRPTA Statement executed by the Company.

Agreements and Documents. Parent Parent, Merger Sub I and the Company Merger Sub II shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.5, 6.7 6.8, 6.9 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and; (jb) written resignations of all directors and officers of the Company, including resignations as employees of the Company by the Chief Executive Officer and the Chief Science Officer, effective as of the Effective Time; (c) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate certificate of Incorporationincorporation, Bylaws bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (kd) the First Step Certificate of Merger, executed by the Company; (le) the Company Acknowledgments Acknowledgements of Payment and Release; (mf) a longshort-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days five business days prior to Closing with respect to the Company; (ng) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority Body in each jurisdiction where it is required to be qualified to do businessKentucky, all of which are dated within five (5) Business Days business days prior to the Closing; and; (oh) a spreadsheet Support Agreements and Investment Rep Letters executed by Company Stockholders holding no less than 85% of the Company Capital Stock outstanding immediately prior to the Closing; (i) Omnibus Consents executed and delivered by Company Stockholders holding no less than 85% of the “Company Capital Stock outstanding immediately prior to the Closing; (j) the Parent Shareholder Agreements executed by the Company Stockholders holding no less than 85% of the Company Capital Stock outstanding immediately prior to the Closing; (k) the Founder Consulting Agreement; (l) the Closing Payment Schedule”), duly certified by an officer of the Company setting forth: Company; (im) the Closing Date Stockholder Liability AmountEscrow Agreement duly executed by the Escrow Agent and the Stockholders’ Representative; and (iin) the name FIRPTA certification and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to notice specified Section 1.104.9. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate an employment agreement executed by Cxxxxx Xxxx, in form and substance reasonably satisfactory to Parent; (b) the Lockup Agreements in the form of Exhibit KD, executed concurrently with the execution and delivery of this Agreement by the Persons identified on Exhibit L Cxxxxx Xxxx, Jxxx XxXxxxxx, Braemar Energy Ventures LP, Cxxxxxx River Partnership XII, LP, CRV XII Affiliates Fund, LP, Rho Ventures IV (QP) LP, Rho Ventures IV GmbH & Co. Beteiligungs KG, Rho Ventures IV LP, Rho Management Trust I and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement Kxxxxx Ventures I, LP, shall remain in a the form of Exhibit Mfull force and effect; (c) the employment offer letters The Escrow Agreement in substantially the form attached hereto as of Exhibit NE, executed by the individuals identified on Exhibit EEscrow Agent and the Company Stockholders’ Representative; (d) Noncompetition Agreements written resignations of the directors of the Company and each Company Subsidiary identified in Part 7.4(d) of the form Company Disclosure Schedule, effective as of Exhibit F, executed by the individuals identified on Exhibit EEffective Time; (e) a Release in certificate signed on behalf of the form of Exhibit O, executed Company by the Persons identified on Exhibit PChief Executive Officer and the Chief Financial Officer of the Company representing and warranting that the conditions set forth in Section 7.1 and Section 7.2 have been duly satisfied (the “Company Compliance Certificate”); (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed a certificate signed by all employees the Chief Financial Officer of the Company and by all consultants and independent contractors to (i) certifying the capitalization of the Company who have not already signed as of the Closing Date, (ii) attaching a true and complete copy of the final Debt Schedule and Closing Debt Balance, and (iii) certifying the Debt Schedule and the amount of the Closing Debt Balance, if any, and setting forth the components of such agreements, including Xxxxxxx Xxxxxamount in reasonable detail; (g) certificates of good standing (or equivalent documentation) of the statement referred Company in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to in Section 5.8(a), executed the incumbency of officers and the adoption of resolutions of the board of directors of the Company authorizing the execution of this Agreement and the consummation of the transactions contemplated by this Agreement to be performed by the Company; (h) a legal written opinion from Cxxxxx Godward Kronish LLP, counsel to Parent, to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as Section 368(a) of the Closing DateCode; provided that if Cxxxxx Godward Kronish LLP does not render such opinion, in this condition shall nonetheless be deemed satisfied if Bxxxxxx MxXxxxxxx LLP renders such opinion to Parent (it being agreed that Parent and the form of Exhibit QCompany shall each provide reasonable cooperation, which legal including making reasonable and customary representations, to Bxxxxxx MxXxxxxxx LLP or Cooley Godward Kronish LLP, as the case may be, to enable them to render such opinion and that counsel shall be subject entitled to customary qualifications; (i) a certificate executed by the Company rely on such representations and containing the representation and warranty of the Company that each of the conditions set forth such assumptions as they deem appropriate in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”rendering such opinion); and (ji) a certificate executed by the Secretary an opinion of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this AgreementBxxxxxx MxXxxxxxx LLP, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate form of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options attached hereto as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.Exhibit F.

Agreements and Documents. Parent and the The Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements an employment agreement for each Key Employee in substantially the form agreed to between Parent and such Key Employee, executed by Parent and such Key Employee; (b) a Registration Rights Agreement, substantially in the form of Exhibit KI, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit MParent; (c) the employment offer letters in substantially the form attached hereto as Exhibit Na certificate, executed on behalf of Parent, by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form an executive officer of Exhibit FParent, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company certifying that each of the conditions set forth in Sections 6.17.1 (as it relates to the representations and warranties of Parent), 6.27.2 (as it relates to the covenants and obligations of Parent), 6.4 and 6.10 7.3 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreementsatisfied; (kd) a certificate, executed on behalf of Merger Sub, by an executive officer of Merger Sub, certifying that the conditions set forth in Sections 7.1 (as it relates to the representations and warranties of Merger Sub) and 7.2 (as it relates to the covenants and obligations of Merger Sub) have been duly satisfied; (e) the Certificate of Merger, executed by the CompanyMerger Sub; (lf) to each Company Equityholder that, with respect to Non-Dissenting Stockholders, has duly executed and delivered a Letter of Transmittal in accordance with the terms thereof, such Company Acknowledgments Equityholder’s (i) Note, (ii) Warrant, and (iii) certificates representing all of Payment and Releasethe applicable shares of Parent Common Stock comprising the Closing Stock Consideration Share Amount, in each case, to which such Company Equityholder is entitled pursuant to the terms hereof; (mg) a long-form certificate of good standing from certified by the Secretary of State Parent, a copy of the State written resolutions duly-adopted by the board of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate directors of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: Parent (i) approving this Agreement, the Closing Date Stockholder Liability Amount; Merger and the Contemplated Transactions and (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior appointing Xxxxx L.L. Xxxxxx to the Effective Time and the number board of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the CompanyParent, effective as of the Effective Time; (h) certified by the Secretary of Merger Sub, a copy of (i) the written consent of the board of directors of Merger Sub approving this Agreement, the Merger and the transactions contemplated hereby, and (ii) the written consent of the sole stockholder of Merger Sub approving this Agreement, the Merger and the transactions contemplated hereby; (i) Support Agreements, duly executed by the stockholders of Parent holding in the aggregate a number of shares of capital stock sufficient to provide the Required Parent Stockholder Consent, substantially in the form of Exhibit F (“Support Agreements”); (j) such other documents as may be reasonably requested by the Stockholder Representative.

Agreements and Documents. Parent and the Company Companies shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KB-2, executed by the Persons identified on Exhibit L B-1 and by any other Person who could reasonably be deemed to be an “"affiliate” " of the Company Companies for purposes of the Securities Act; (b) the Escrow an Employment and Noncompetition Agreement in a the form of Exhibit Mthe draft agreement provided to Xxxx X. Xxxxx on the date hereof, executed by Xxxx X. Xxxxx; (c) the employment offer letters an Employment and Noncompetition Agreement in substantially the a form attached hereto as Exhibit Nreasonably satisfactory to Parent, executed by the individuals identified on Exhibit EXxxxxx Xxxxx; (d) an Independent Contractor and Noncompetition Agreements Agreement in the form of the draft agreement provided to Xxxxxxxx Xxxxx on the date hereof, executed by Xxxxxxxx Xxxxx; (e) a FIRPTA Statement in the form of Exhibit E, executed by each of the Companies; (f) a Release in the form of Exhibit F, executed by each of the individuals identified on Exhibit ESelling Stockholders; (eg) a Release Stockholder Representation Letters in the form of Exhibit OG, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees each of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the CompanySelling Stockholders; (h) a Registration Rights Agreement in the form of Exhibit H, executed by the Selling Stockholders; (i) an escrow agreement (the "Escrow Agreement") in the form of Exhibit I, executed by each of the Selling Stockholders; (j) a release, in a form reasonably satisfactory to Parent, from Xxxxx Xxx Xxxxx releasing any liens she has on any capital stock of any of the Companies, executed by Xxxxx Xxx Xxxxx; (k) a release and acknowledgement, in the form of Exhibit J, executed by Xxxxxx Xxxxx; (l) a legal opinion of Sheppardcounsel to the Companies, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsK; (im) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, concurring with Parent's position that Parent may account for the Mergers as a "pooling of interests" in accordance with generally accepted accounting principles ("GAAP"), Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (n) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, providing negative assurance as to whether or not audited consolidated financial statements of the Companies, prepared in accordance with GAAP, covering each of the prior three fiscal years, can be prepared. (o) a letter from each of the Companies, dated as of the Closing Date, confirming that no transaction entered into by any of the Companies, and no other fact or circumstance relating to any of the Companies, will prevent Parent from accounting for the Mergers as a "pooling of interests" in accordance with generally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (p) a certificate executed by each of the Company Selling Stockholders and containing the representation and warranty of the Company each Selling Stockholder that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.7, 6.9, 6.11 and 6.10 6.12 have been duly satisfied (the “Company "Selling Stockholders' Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pq) written resignations of all officers and directors of all of the CompanyCompanies, effective as of the Effective TimeClosing Date.

Agreements and Documents. Parent Terayon and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate The Escrow Agreement in the form of Exhibit J, executed by the Escrow Agent, the Company Shareholders' Agent and the Company; (b) Employment Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NG, executed by the individuals identified on Exhibit EF; (dc) Noncompetition Agreements in the form of Exhibit FH, executed by the individuals identified on Exhibit EF; (d) the agreement referred to in Section 5.7, executed by certain Company Shareholders; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Terayon, executed by all employees of the Company and by all Company's (i) employees (ii) former employees, (iii) consultants and independent contractors, and (iv) former consultants and former independent contractors to the Company who have not already signed such agreementsagreements (including the individuals identified in Schedule 2.9(f)(i) of the Disclosure Schedule); provided that no such agreements will be required of the Persons identified in clauses (ii), including Xxxxxxx Xxxxx(iii) and (iv) whose jobs or services provided did not materially relate to the Company's Proprietary Assets. (f) estoppel certificates, dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Terayon, executed by each of 188 Embarcadero Associates, LP and Xxxxxx XX Associates, LP (together, the "Landlords"); provided that no estoppel certificate is required if the Company has terminated its lease agreement with a Landlord; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of SheppardXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, MullinP.C., Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsK; (ih) a certificate executed by the Company Company's Chief Executive Officer and containing the representation and warranty Director of Finance certifying that (1) each of the Company representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and (2) that each of the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “Company "Closing Certificate”"); provided, however that any inaccuracy of a representation or warranty as of the Closing Date shall not be deemed an inaccuracy for purposes of this Section 6.5(h) to the extent such inaccuracy has resulted from the conversion discussed in Section 6.14, an action contemplated in Schedules 4.2(f), 4.2(g) and 4.2(h) of the Disclosure Schedule or Terayon's activities related to the Company's operations between the date hereof and the Closing Date; and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.; and (j) Shareholder lock-up agreements executed by the holders of at least ninety-two percent (92%) of the Company's equity securities in the form of Exhibit L.

Agreements and Documents. Parent and the Company Investor shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements the Shareholders’ Agreement in the form of Exhibit KC-2, executed by the Persons Company and each of the Company’s shareholders identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActC-1; (b) the Escrow Agreement General Releases in a the form of Exhibit MB-2, executed by each of the Company shareholders identified on Exhibit B-1; (c) the employment offer letters in substantially the form attached hereto except as Exhibit N, executed may otherwise be requested by the individuals identified on Exhibit EInvestor in writing, written resignations of all directors of the Company and each of its Subsidiaries, effective as of the Closing; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified a certificate signed on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees behalf of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of Chief Executive Officer and the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty Chief Financial Officer of the Company representing and warranting that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.6, 6.7, 6.9, 6.12, 6.13, 6.14, 6.15, 6.16, and 6.10 6.17 have been duly satisfied (the “Company Closing Compliance Certificate”); and; (je) a legal opinion of Xxxxxx & Xxxxxx PLLC with respect to the matters set forth in Exhibit D; (f) a certificate executed signed by the Chief Financial Officer of the Company certifying the amount of the Transaction Expenses incurred as of the Closing Date; (g) a certificate, dated as of the Closing Date, signed by the Secretary of the Company (i) attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions copies of the Company’s charter (including, without limitation, the Amended Charter) and bylaws (or operating agreement, as applicable), and any amendments thereto, of the Company and each of its Subsidiaries, (ii) certifying that attached thereto are true and correct copies of action by written consent or resolutions duly adopted by the board of directors of the Company which authorize and stockholders approving approve the execution, delivery and adopting performance of this Agreement, the Merger Agreement and the other consummation of the transactions contemplated by hereby, (iii) certifying that there are no proceedings for the dissolution or liquidation of the Company or any of its Subsidiaries, and (iv) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement; (k) the Certificate of MergerAgreement and all other documents, instruments or agreements related thereto executed or to be executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (oh) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors subordinated promissory note of the Company, effective made as of the Effective TimeClosing, in favor of the Investor in the aggregate principal amount of $500,000, in form and substance reasonably satisfactory to the Investor and to the Company’s secured lenders.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate an employment agreement executed by Xxxxxx Xxxx, in form and substance reasonably satisfactory to Parent; (b) the Lockup Agreements in the form of Exhibit KD, executed concurrently with the execution and delivery of this Agreement by the Persons identified on Exhibit L Xxxxxx Xxxx, Xxxx XxXxxxxx, Braemar Energy Ventures LP, Xxxxxxx River Partnership XII, LP, CRV XII Affiliates Fund, LP, Rho Ventures IV (QP) LP, Rho Ventures IV GmbH & Co. Beteiligungs KG, Rho Ventures IV LP, Rho Management Trust I and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement Xxxxxx Ventures I, LP, shall remain in a the form of Exhibit Mfull force and effect; (c) the employment offer letters The Escrow Agreement in substantially the form attached hereto as of Exhibit NE, executed by the individuals identified on Exhibit EEscrow Agent and the Company Stockholders’ Representative; (d) Noncompetition Agreements written resignations of the directors of the Company and each Company Subsidiary identified in Part 7.4(d) of the form Company Disclosure Schedule, effective as of Exhibit F, executed by the individuals identified on Exhibit EEffective Time; (e) a Release in certificate signed on behalf of the form of Exhibit O, executed Company by the Persons identified on Exhibit PChief Executive Officer and the Chief Financial Officer of the Company representing and warranting that the conditions set forth in Section 7.1 and Section 7.2 have been duly satisfied (the “Company Compliance Certificate”); (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed a certificate signed by all employees the Chief Financial Officer of the Company and by all consultants and independent contractors to (i) certifying the capitalization of the Company who have not already signed as of the Closing Date, (ii) attaching a true and complete copy of the final Debt Schedule and Closing Debt Balance, and (iii) certifying the Debt Schedule and the amount of the Closing Debt Balance, if any, and setting forth the components of such agreements, including Xxxxxxx Xxxxxamount in reasonable detail; (g) certificates of good standing (or equivalent documentation) of the statement referred Company in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to in Section 5.8(a), executed the incumbency of officers and the adoption of resolutions of the board of directors of the Company authorizing the execution of this Agreement and the consummation of the transactions contemplated by this Agreement to be performed by the Company; (h) a legal written opinion from Xxxxxx Godward Kronish LLP, counsel to Parent, to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as Section 368(a) of the Closing DateCode; provided that if Cooley Godward Kronish LLP does not render such opinion, in this condition shall nonetheless be deemed satisfied if Xxxxxxx XxXxxxxxx LLP renders such opinion to Parent (it being agreed that Parent and the form of Exhibit QCompany shall each provide reasonable cooperation, which legal including making reasonable and customary representations, to Xxxxxxx XxXxxxxxx LLP or Xxxxxx Godward Kronish LLP, as the case may be, to enable them to render such opinion and that counsel shall be subject entitled to customary qualifications; (i) a certificate executed by the Company rely on such representations and containing the representation and warranty of the Company that each of the conditions set forth such assumptions as they deem appropriate in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”rendering such opinion); and (ji) a certificate executed by the Secretary an opinion of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this AgreementXxxxxxx XxXxxxxxx LLP, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate form of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options attached hereto as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.Exhibit F.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L Employment and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (eb) [RESERVED] (c) a Release legal opinion of Sugar Friedberg & Felsenthal dated as of the Closxxx Xxxx, in respect of the Company and in the form of Exhibit O, executed by the Persons identified on Exhibit PI; (fd) confidential invention and assignment agreements, attached hereto as Exhibit H, executed certified copies of resolutions duly adopted by all employees of the Company approving the execution and by delivery of this Agreement and all consultants and independent contractors other necessary or proper corporate action to enable them to comply with the Company who have not already signed such agreements, including Xxxxxxx Xxxxxterms of this Agreement; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (ie) a certificate executed by the Company Designated Shareholders and Mr. Chanin and containing the representation xxxxxxxxtation and warranty of the Company each Designated Shareholder and Mr. Chanin that each of the repxxxxxxxxxxns and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.2 and 6.10 6.3 have been duly satisfied (the “Company "Designated Shareholders' Closing Certificate”"); (f) Escrow Agreement, in the form of Exhibit J; (g) the agreement referred to in Section 5.6, executed by Parent, IDP and Richard Gardella; (h) xxx xxxxxxxxx xx Trade Payables referred to in Section 5.7; (i) the executed stock powers in blank referred to in Section 1.5(c)(iii); and (j) a certificate executed an irrevocable letter of credit in the amount of $200,000 made by the Secretary Silicon Valley Bank primary banking institution of the Company attaching and certifying the Company’s current Certificate Parent, in favor of IncorporationChanin Technology Investments, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.L.X.X.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements the Escrow Agreement substantially in the form of Exhibit KD, executed by the Persons identified on Exhibit L Escrow Agent and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActStockholders’ Representative; (b) releases substantially in the Escrow Agreement in a the form forms of Exhibit MF executed by each of the Company’s officers; (c) the employment offer letters releases substantially in substantially the form attached hereto as of Exhibit N, G executed by each of the individuals identified on Exhibit ECompany’s directors; (d) Noncompetition Non-Competition Agreements substantially in the form of Exhibit F, C executed by each of the individuals identified on Exhibit EKey Employees; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time; (f) a certificate signed on behalf of the Company by the President and the Chief Financial Officer of the Company representing and warranting that the conditions set forth in Section 7.1, Section 7.2 and Section 7.4 have been duly satisfied (the “Company Compliance Certificate”); (g) a legal opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP in the form of Exhibit H; (h) a certificate signed by the Chief Financial Officer of the Company certifying the accuracy in all respects of the Merger Consideration Spreadsheet; (i) a certificate, dated as of the Closing Date, signed by the Secretary of the Company (i) attaching true and correct copies of the certificate of incorporation and bylaws, and any amendments thereto, of the Company, (ii) certifying that attached thereto are true and correct copies of actions by written consent or resolutions duly approved by the board of directors and Company Stockholders which authorize and approve the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated hereby, including the Merger (iv) certifying that there are no proceedings for the dissolution or liquidation of the Company, and (v) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement and all Related Agreements executed or to be executed by the Company; (j) a Payoff Letter in the form of Exhibit I executed by Bridge Bank N.A. (the “Payoff Letter” and evidence reasonably satisfactory to Parent that Company has paid the amount set forth in the Payoff Letter in full; (k) evidence reasonably satisfactory to Parent that the Company has paid all Company Merger Costs payable to Xxxxxxx & Company, LLC, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, Houston Eliseeva, LLP and Xxxxx Xxxxxx and other advisor in full as of the Closing; (l) evidence reasonably satisfactory to Parent that the Commission Agreement by and between Axsun Technologies and Xxxxxxxxxxx X. Xxxxxxxx, dated March 12, 2008, has been terminated; and (m) validly executed copy of all agreements, instruments, certificates and other documents, in form and substance reasonably satisfactory to Parent, that are necessary or appropriate to evidence the release of all liens set forth in Schedule 7.6(m) hereto.

Agreements and Documents. Parent and the Company shall have received the The following agreements and documents, each of which shall be all in full force form and effectsubstance reasonably satisfactory to the Parent, will have been executed and delivered to the Parent: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActExchangeable Share Support Agreement; (b) the Escrow Agreement in a the form of Exhibit MVoting Agreement; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, a certificate executed by an officer of the individuals identified on Exhibit ECompany certifying that: (A) the representations and warranties of the Company set forth in this Agreement are true and correct in all material respects as at the Closing, (B) the Company has performed and complied with all of its material obligations, covenants and agreements required hereunder, and (C) all conditions precedent of the Company for completion of the transactions contemplated herein have been satisfied or waived; (d) Noncompetition Agreements in the form of Exhibit F, a certificate executed by an officer of the individuals identified on Exhibit EShareholder certifying that: (A) the representations and warranties of the Shareholder set forth in this Agreement are true and correct in all material respects as at the Closing, (B) the Shareholder has performed and complied with all of its material obligations, covenants and agreements required hereunder, and (C) all conditions precedent of the Shareholder for completion of the transactions contemplated herein have been satisfied or waived; (e) a Release in certified copies of resolutions of the form directors of Exhibit O, executed by the Persons identified on Exhibit PShareholder approving the entry into and the Closing of this Agreement and the Voting Agreement; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees certified copies of resolutions of the directors of the Company approving: the entry into and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws this Agreement and the resolutions of the Company’s board of directors and stockholders approving and adopting this Voting Agreement, the Merger transfer of the Shares to the ExchangeCo, the registration of the Shares in the name of the ExchangeCo, the issue of share certificates representing the Shares registered in the name of the ExchangeCo, and the all other transactions matters contemplated by this Agreement; (kg) the Certificate of Merger, executed except as may otherwise be specified by the Company; (l) Parent, the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers Dxxxx Xxxxx as officer and directors director of the Company, effective as of the Effective TimeClosing Date; (h) a certified copy of the central securities register of the Company evidencing the ExchangeCo as the sole registered owner of the Shares; (i) all such instruments of transfer, duly executed, which in the opinion of the Parent acting reasonably are necessary to effect and evidence the transfer of the Shares to the Parent, free and clear of all Encumbrances; (j) the corporate minute books and all other books and records of the Company and each predecessor of the Company; and (k) an opinion letter from the Company’s and Shareholder’s legal counsel, addressing due the organization, existence, and authority of the parties to consummate the transactions referenced herein, as well as any other matters reasonably requested by the Parent.

Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KEscrow Agreement, duly executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActSelling Shareholders; (b) the Escrow Agreement in a the form of Exhibit M; (c) the Founders' employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements agreements in the form of Exhibit FC attached hereto, duly executed by each of the individuals Founders. (c) assignments and releases, in form and substance reasonably satisfactory to Purchaser, duly executed by each of the Founders pursuant to which the Founders irrevocably assign all of their rights in the Acquired Company IP to the Company. (d) a Release Agreement substantially in the form of Exhibit D attached hereto, duly executed by each of the Selling Shareholders, and each other Person identified on Exhibit ESchedule 7.6(d); (e) a Release the Key Employees' employment agreements substantially in the form of Exhibit OE, duly executed by each of the Persons identified on Exhibit PKey Employees; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), a certificate duly executed by the Company; (h) a legal opinion chief executive officer or manager of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as each of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company Selling Shareholders and containing the representation and warranty of the Company such Selling Shareholders that each of the conditions set forth in Sections 6.17.1, 6.27.2 (expressly including Section 6.7), 6.4 7.4, 7.5, 7.8, 7.9, and 6.10 7.10 have been duly satisfied (the “Company Closing Certificate”); and; (g) a duly executed waiver and release from Anritsu A/S, in the form of Exhibit F; (h) a duly executed consent from Xilinx Inc., in the form of Exhibit G; (i) a duly executed consent from Maxeler, in the form of Exhibit H; (j) a certificate duly executed by consent from GSI Technology Inc., in the Secretary form of Exhibit I; (k) duly executed payoff letters or other evidence, in form and substance reasonably satisfactory to Purchaser, from each outside legal counsel and any financial advisor or accountant who is entitled to any compensation from any Acquired Company due to services performed in connection with this Agreement or any of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting transactions contemplated by this Agreement, in which such Person acknowledges: (A) the Merger total amount of fees, costs and expenses of any nature that is payable to such Person in connection with this Agreement and any of the transactions contemplated by this Agreement; and (B) that, upon receipt of the amount referred to in clause “(A),” it will have been paid in full and will not be owed any other amount by any Acquired Company with respect to this Agreement or the transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) duly executed payoff letters from each Pay-Off Creditor, containing, in each case the Company Acknowledgments amounts and currency required to effect full repayment of Payment each respective component of the Pay-Off Amounts and Releasethe wire transfer information of the Pay-Off Creditors; (m) a long-form certificate of good standing the written resignation letters from all the Secretary of State members of the State board of Delaware which is dated within two Business Days prior directors of each Acquired Company referred to Closing with respect to the Companyin Section 6.7; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five shareholders' register and minute books (5) Business Days prior complete and written up to the date of Closing; and) of each Acquired Company; (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of legal opinion regarding the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held executed by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of counsel for the Company, effective as in substantially the form of the Effective Time.Exhibit J.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KRegistration Rights Agreement, executed by the Major Stockholders and such other Persons identified on Exhibit L and by any other Person who could reasonably be deemed to are or will be an “affiliate” Affiliate of the Company for purposes of the Securities ActCompany; (b) the Escrow Agreement in a Agreement, executed by the form of Exhibit MStockholders’ Agent and the Escrow Agent; (c) the employment offer letters in substantially the form attached hereto as Exhibit NLockup Agreement, executed by Company Stockholders holding at least eighty percent (80%) of the individuals identified on Exhibit Eissued and outstanding shares of Company Common Stock; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from , to be filed with the Secretary of State of the State of Delaware which in accordance with Section 1.3; (e) a certificate executed by the Chief Executive Officer of the Company containing the representation of such Chief Executive Officer on behalf of the Company that the conditions set forth in Sections 7.1, 7.2 and 7.6 have been duly satisfied; (f) a statement in accordance with Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h) certifying that the Company is dated within two Business Days prior to Closing with respect to not, and has not been, a “United States real property holding corporation” for purposes of Code §897 and Code §1445, duly executed by the Company; (ng) a Certificate of Status of Foreign Corporation certificate of the Company from Secretary of the applicable Governmental Authority in Company, certifying to (i) the incumbency and specimen signature of each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) executing this Agreement and any other document executed on behalf of the Closing Date Stockholder Liability Amount; Company, (ii) the name and address of each organizational documents of the holders of the Company Capital StockCompany, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a)resolutions of the Board of Directors of the Company approving and adopting this Agreement, 1.6 the Transaction Agreements and 1.7; the transactions contemplated hereby and thereby, which shall not have been modified, revoked or rescinded as of the Closing, and (iv) Company Stockholder Approval, which shall not have been modified, revoked or rescinded as of the amount to be contributed Closing; (h) a certificate of good standing with respect to the Escrow Fund by Parent on behalf Company and each of each Escrow Contributor pursuant its Subsidiaries, dated not more than ten (10) days prior to Section 1.10.the Closing Date, from the state of Delaware and any other applicable jurisdictions of formation or incorporation; (pi) written resignations of all officers and directors of the CompanyCompany and of each Subsidiary who are not listed on Exhibit D, effective as of the Effective TimeClosing Date; and (j) the Backstop Indemnity Agreement in the form of Exhibit G attached hereto, executed by each of the Major Stockholders.

Agreements and Documents. Parent Terayon and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate fully executed Escrow Agreement (the "Escrow Agreement") in the form and substance reasonably satisfactory to counsel for Terayon and counsel for the Sellers, which shall contain, without limitation, provisions regarding the following: (i) the release of the Escrow Shares upon the termination of a one (1) year period commencing on the Closing Date, (ii) provisions enabling the Sellers' Representative to instruct the Escrow Agent as to the sale of the Escrow Shares (with the proceeds of such sale(s) to be deposited in the Escrow in lieu of the Escrow Shares), and (iii) such other terms and conditions as are standard and customary in transactions of this nature ; (b) employment and Non-Competition Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NE, executed by the individuals identified on Exhibit ED; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (fc) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Terayon, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (hd) a legal opinion of SheppardXxxxxxxxxx Xxxxx & Co., MullinLaw Offices, Xxxxxxx & Hampton LLP in form and substance reasonably satisfactory to counsel for Terayon, addressed to Terayon and dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (ie) a certificate executed by the Company and containing the representation and warranty President of the Company (but without personal liability thereto) certifying that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.2 and 6.10 6.3 have been duly satisfied (the “"Company Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pf) written resignations of all officers and directors of the Company, effective as of the Effective TimeClosing Date; (g) certificates representing the Shares accompanied by share transfer deeds duly executed for transfer in blank; and (h) Option Holder Consent Letter and Counterpart Signature Pages, executed by all of the Option Holders.

Agreements and Documents. Parent and the Company shall have received received, or shall have waived its right to receive, the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate the Employment Agreements in and the form of Exhibit KInvention Assignment Agreements attached hereto as Exhibits C and D, respectively, shall have been executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActFounders; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit OE, executed by each of the Persons identified on Exhibit Pstockholders of the Company; (fc) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, agreements (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(f) of the Company Disclosure Schedule); (gd) Investment Letters in the statement referred to in Section 5.8(a), form of Exhibit F executed by all of the CompanyCompany stockholders as of the Closing Date; (he) a legal opinion of SheppardNxxxxx Xxxxxxx Xxxxx & Scarborough LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, substantially in the form of Exhibit QG; (f) a written opinion from Parent's counsel to the effect that the Merger will be treated for Federal income tax purposes as a Reorganization within the meaning of Section 368 of the Internal Revenue Code; (g) an Escrow Agreement in the form of Exhibit B, which legal opinion shall be subject to customary qualificationsexecuted by the Company Stockholders' Representatives and the Escrow Agent; (h) a certificate signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company representing and warranting that the conditions set forth in Sections 6.1 and 6.2 have been duly satisfied (the "Company Compliance Certificate"); (i) a certificate executed by the Company detailed and containing the representation and warranty complete description of all expenses set forth in Part 2.11 of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); andDisclosure Schedule; (j) a certificate executed by the Secretary written acknowledgement from each officer and director of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) that any indemnification agreement between the Company Acknowledgments and such person will not in any way mitigate such person's liability under Section 9.8 of Payment and Release; (m) a long-form certificate of good standing from this Agreement or for fraud in connection with the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10Merger. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall will have received the following agreements and documents, each of which shall will be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed on behalf of Parent by the Company and containing the representation and warranty of the Company its Chief Executive Officer confirming that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.5, 6.6 and 6.10 6.7 have been duly satisfied satisfied; (b) a Joint or Singular Company Board of Director’s and Company Majority Shareholders’ Written Consent to Merger, among other provisions thereof, in the form of Exhibit 5.4(b) executed by all members of Company Board of Directors and all of Company Majority Shareholders; (c) resolutions of the Boards of Directors of Parent and of Merger Subsidiary, certified by the secretary of Parent, approving the transactions contemplated by this Agreement (by Parent as a Party and as the sold shareholder of Merger Subsidiary), including the Merger, the issuance of the Merger Consideration and the matters referred to in Section 1.8(b) of this Agreement or as otherwise required to complete the transactions contemplated hereby; (d) a Company Shareholders’ Representations and Warranties executed by all Company Shareholders owning Company Common Stock and being entitled to receive Parent Common Stock under the Merger, approving the Merger and agreeing, among other provisions thereof, to a minimum holding period of such Parent Common Stock of the greater of the holding period required by SEC Rule 144 or twelve (12) months from the Effective Date, which, if not executed and delivered by the respective Company Shareholders to Parent within thirty (30) days of the dissenters’ notice (the “Dissenters’ Notice”) to Company Shareholders required by Section 16-10a-1322 of the Utah Act (assuming the Merger is first approved by the Company Majority Shareholders and the Closing Certificate”has taken place and there is an Effective Date), will automatically result in the exercise of Dissenters’ Rights by any of Company Shareholders for any failure on the part of any such holder to execute and deliver this instrument, in the form of Exhibit 5.4(c); (e) Xxxxx X. Xxxxxx shall have agreed to contribute all debt of Parent owned to him to Parent capital as a capital contribution in consideration of the Merger, along with agreeing to assist Parent’s new management in integrating the present business operations of Parent into the current and intended business operations of Company, in the form of Exhibit 5.4(e). (f) duly executed Services Agreements with Messrs. Xxxxx and Xxxxxx in the forms of Exhibit 5.4(d)(i) and 5.4(d)(ii), respectively; and (jg) a certificate duly executed by respective Introduction Fee Releases for the Secretary persons named as such in the Disclosure Schedules in the form of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”Exhibit 5.4(f), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements Employment Offer Letters substantially in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NG hereto, executed by the individuals identified on Exhibit EF hereto; (db) Noncompetition Agreements substantially in the form of Exhibit FH hereto, executed by the individuals identified on Exhibit EF hereto; (i) Stockholder Representation Letters substantially in the form of Exhibit E-1 hereto, executed by each of the Merger Stockholders and (ii) Purchaser Representative Letters substantially in the form of Exhibit E-2 hereto, executed by each Merger Stockholder that is not an "accredited investor" for purposes of Regulation D of the SEC; (d) a Registration Rights Agreement substantially in the form of Exhibit C hereto, executed by each of the Merger Stockholders; (e) a Release Lock-Up Agreement substantially in the form of Exhibit ON hereto, executed by each of the Persons identified on Exhibit PMerger Stockholders; (f) confidential invention and assignment agreements, attached hereto as an Escrow Agreement substantially in the form of Exhibit HD hereto, executed by all employees the Escrow Agent and each of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx XxxxxMerger Stockholders; (g) a Release substantially in the statement referred to in Section 5.8(a)form of Exhibit I hereto, executed by the CompanyKey Employees; (h) a legal opinion of SheppardGoulston & Storrs P.C. and of regulatory counsel for the Company, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, covering substantially the matters set forth in Exhibit L hereto; provided, however, that the form only opinion from regulatory counsel with respect to necessary regulatory approvals in connection with the Merger that will be required will be that the notice given by the Company to the Massachusetts Department of Exhibit Q, which legal opinion shall be subject Telecommunications and Energy Company regarding the Merger is sufficient to customary qualificationscomply with the requirements of Massachusetts law; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.5, 6.8, 6.9 and 6.10 have been duly satisfied (the “Company "Company's Closing Certificate”"); and; (j) a certificate of merger executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from to be filed with the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing in accordance with respect to the CompanySection 1.3; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pk) written resignations of all officers and directors of the Company, effective as of the Closing Date; (l) the valid and effective termination of agreements among the Company stockholders; (m) the valid and effective termination as of the Effective TimeTime of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or a Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable law; and (n) amendments to the promissory notes identified in Part 2.7(b) and Part 4.2(i)(2) of the Disclosure Schedule providing that (i) 50% of the principal and interest due to the Company under such promissory notes shall be due and payable no later than 60 days after effectiveness of the Registration Statement (as defined in the Registration Rights Agreement), (ii) 50% of the principal and interest due to the Company under such promissory notes shall be due and payable by April 1, 2001 and (iii) amounts due and payable under such notes may be offset, at any time after such amounts become due and payable, against any severance payments that are payable by Parent or the Surviving Corporation to the holders of such promissory notes, shall have been executed by the Company and the obligors of such promissory notes.

Agreements and Documents. Parent and the Company Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Employment Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NH, executed by the individuals identified on Exhibit EF; (db) Noncompetition Agreements in the form of Exhibit FI, executed by the individuals identified on Exhibit E;F; 32. (ec) a Release in the form of Exhibit OJ, executed by the Persons identified on Designated Stockholders; (d) the agreement referred to in Section 5.8, executed by certain Company stockholders; (e) Retention Agreements in the form of Exhibit PN, executed by each employee of the Company who holds either capital stock of the Company or a Company Option; (f) an Indemnification Escrow Agreement in the form of Exhibit E executed by the Designated Stockholders and the Company Stockholders' Agent (as defined in Section 10.1) (g) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, agreements (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(f) of the Disclosure Schedule); (gh) the statement referred to in Section 5.8(a5.9(a), executed by the Company; (hi) a legal opinion of SheppardVenture Law Group, MullinA Professional Corporation, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsK; (ij) a certificate executed by the Company Company's Chief Executive Officer and containing the representation and warranty of the Company Chief Financial Officer certifying that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “"Company Closing Certificate”"); and; (jk) a certificate executed by the Secretary Designated Stockholders and containing the representation and warranty of each Designated Stockholder that each of the Company attaching representations and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions warranties set forth in Section 2 is accurate in all respects as of the Company’s board of directors Closing Date as if made on the Closing Date and stockholders approving that the conditions set forth in Sections 6.1, 6.2, 6.3 and adopting this Agreement, 6.4 have been duly satisfied (the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to "Designated Stockholders' Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the ClosingCertificate"); and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pl) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements the Escrow Agreement, duly executed by the Stockholders’ Agent and the Escrow Agent; (b) the Release Agreements, substantially in the form of Exhibit KJ, duly executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit MSchedule 6.6(c); (c) the employment offer letters in substantially the form attached hereto as Exhibit N, a certificate duly executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees behalf of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty chief executive officer of the Company certifying that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.4, 6.8, 6.9, 6.13 and 6.10 6.14, have been duly satisfied (the “Company Closing Certificate”); and; (jd) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment ScheduleMerger Consideration Certificate”), duly certified by an officer executed on behalf of the Company setting forth: by its chief financial officer, containing the following information and the representation and warranty of the Company that all of such information is true and accurate as of the Closing: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of record of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of Person (other than Parent) who is a Covered Securityholder immediately prior to the Effective Time and Time; (ii) the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series Stock held by each such stockholder immediately prior to the Effective Time; Time (together with the corresponding Company Share Certificate number); (iii) the consideration Merger Consideration that each such stockholder Covered Securityholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and Section 1.3; (iv) the cash amount to be contributed to the Escrow Fund Account and the Holdback Account with respect to the shares of Company Capital Stock held by Parent on behalf of each Escrow Contributor such stockholder pursuant to Section 1.101.7(a) and Section 1.7(b) respectively; and (v) the cash amounts to be paid to each Schedule 1.12(d) Payment Recipient. (pe) documentation, reasonably satisfactory to Parent, in support of the calculation of the amounts set forth in the Merger Consideration Certificate; (f) the written resignations of and release of claims from all officers and directors of the CompanyCompany required pursuant to Section 4.5, effective as of the Effective Time; (g) the Certificate of Merger duly executed by the Company; (h) written acknowledgment and release of claims from each Schedule 1.12 (d) Payment Recipient acknowledging that upon receipt by such Person of the amount indicated on the Merger Consideration Certificate, such Person will have been paid in full, and has no other claims of any type against the Company; and (i) the FIRPTA Statement executed by the Company.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KG hereto, executed by the Persons identified on Exhibit L E hereto and by any other Person who could reasonably be deemed to be an “"affiliate” " of the Company for purposes of the Securities Act; (b) the Escrow Agreement Noncompetition Agreements in a the form of Exhibit MH hereto, executed by the Key Employees, effective as of the date of this Agreement, and such agreements shall not have been rescinded and shall be in full force and effect as of the Closing Date; (c) the employment offer letters a FIRPTA Statement in substantially the form attached hereto as of Exhibit NK hereto, executed by the Company; (d) (i) Stockholder Representation Letters in the form of Exhibit F-1 hereto, executed by each of the Merger Stockholders and (ii) Purchaser Representative Letters in the form of Exhibit F-2 hereto, executed by each Merger Stockholder that is not an "accredited investor" for purposes of Regulation D of the SEC; (e) a Registration Rights Agreement in the form of Exhibit C hereto, executed by each of the Merger Stockholders; (f) a Lock-Up Agreement substantially in the form of Exhibit N hereto, executed by each of the Merger Stockholders; (g) an Escrow Agreement in the form of Exhibit D hereto, executed by the Escrow Agent, Stockholders' Agent and each of the Merger Stockholders; (h) a Release in the form of Exhibit J hereto, executed by the individuals identified on Exhibit EI hereto; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (hi) a legal opinion of SheppardManatt, MullinXxxxxx & Xxxxxxxx, Xxxxxxx & Hampton LLP LLP, dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsL hereto; (ij) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.5, 6.7 and 6.10 have been duly satisfied (the “Company "Company's Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate a certificate of Merger, merger executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from to be filed with the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing in accordance with respect to the CompanySection 1.3; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pl) written resignations of all officers and directors of the Company, effective as of the Closing Date; (m) the valid and effective termination of agreements among the Company stockholders; and (n) the valid and effective termination as of the Effective TimeTime of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable law.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit ND, executed by the individuals identified on Stockholders and the Agent; (b) General Release Agreements in the form attached hereto as Exhibit E, executed by the Stockholders; (c) Proprietary Information Agreements in the Company's standard form, executed by the Employees; (d) Noncompetition Agreements in the form of attached hereto as Exhibit F, executed by the individuals identified on Exhibit EXxxxx Xxxxxx, Xxxx Xxxxx and Xxxxx Xxxxx ("Key Employees"); (e) an estoppel certificate, dated as of a Release date not more than five days prior to the Closing Date and satisfactory in the form of Exhibit Oand content to Parent, executed by the Persons identified on Exhibit P[Landlord]; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of SheppardXxxxxx, MullinGesmer & Xxxxxxxxx LLP, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsG; (ig) Voting Agreements in the form attached hereto as Exhibit H, executed by Xxxxx Xxxxx, Xxxxx Xxxxxxx-Xxxxx, Intel Corporation and the entities affiliated with One Liberty Ventures holding Series A Preferred. (h) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.15.1, 6.25.2, 6.4 5.3, 5.4 and 6.10 5.9 have been duly satisfied (the “Company "Closing Certificate”"); and; (ji) the Final Balance Sheet, accompanied by a certificate executed by the Secretary Company containing the representation and warranty of the Company attaching is accurate and certifying complete in all material respects and presents fairly the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation financial position of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer as of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10Date. (pj) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Employment and Noncompetition Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NEXHIBIT H, executed by the individuals identified on Exhibit EEXHIBIT I; (db) Noncompetition Agreements a FIRPTA Statement in the form of Exhibit EXHIBIT F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (hc) Shareholder Representation Letters in the form of EXHIBITS D-1 or D-2, as applicable, executed by each of the Merger Shareholders; (d) a Registration Rights Agreement in the form of EXHIBIT J, executed by the Shareholders' Agents; (e) the Escrow Agreement, executed by the Shareholders' Agents and the Escrow Agent; (f) a legal opinion of SheppardFenwick & West LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsK; (ig) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3 and 6.10 6.5 have been duly satisfied (the “Company "Company's Closing Certificate”"); and; (jh) a certificate an agreement of merger executed by the Company to be filed with the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions State of the Company’s board State of directors California in accordance with Section 1.3 and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate a certificate of Merger, merger executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from to be filed with the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing in accordance with respect to the CompanySection 1.3; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all directors and officers and directors of the Company, effective as of the Effective TimeClosing Date; and (j) written acknowledgements from the Company's Counsel, the Company's Accountants and the Company's Financial Advisors setting forth the total amount of fees, costs and expenses payable to the Company's Counsel, the Company's Accountants and the Company's Financial Advisors, respectively, in connection with all services provided by such advisors with respect to the transactions contemplated by this Agreement.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements an employment agreement for each Key Employee, in substantially the form agreed to between Parent and such Key Employee, executed by such Key Employee; (b) [Reserved]; (c) a Release substantially in the form of Exhibit KH, dated as of the Closing Date, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an each Key Stockholder (each, a “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit ERelease”); (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E[Reserved]; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a)5.13, executed by on behalf of the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (if) a certificate executed on behalf of the Company by the Chief Financial Officer of the Company and setting forth the Aggregate Transaction Expense Amount, accompanied by detailed supporting documentation reasonably satisfactory to Parent; (g) a certificate, executed on behalf of the Company by an officer of the Company, containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.16.1 (as it relates to the representations and warranties of the Company), 6.26.2 (as it relates to the covenants and obligations of the Company) and 6.5 have been duly satisfied; (h) a certificate, 6.4 executed by the Key Stockholders, certifying that the conditions set forth in Sections 6.1 (as it relates to the representations and 6.10 warranties of such Key Stockholder) and 6.2 (as it relates to the covenants and obligations of such Key Stockholder) have been duly satisfied (the “Company Closing Key Stockholder Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time; (j) the Certificate of Merger, executed by the Company; (k) certified by the Secretary of the Company, a copy of the resolutions of the board of directors of the Company approving this Agreement, the Merger and the transactions contemplated hereby; and (l) such other documents as may be reasonably requested by Parent.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KC-1, executed by the Persons identified on Exhibit L C-2 and by any other Person who could reasonably be deemed to be an “"affiliate” " of the Company for purposes of the Securities Act; (b) the Escrow Agreement Noncompetition Agreements in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NG, executed by the individuals identified on Exhibit ED; (c) offer letters previously delivered by Parent and executed by the individuals listed on Exhibit D; (d) Noncompetition Agreements a Release in the form of Exhibit F, executed by the individuals identified on Exhibit Eshareholders of the Company; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreementsagreements (including the individuals identified in Part 2.9(f) of the Disclosure Schedule); (f) the Escrow Agreement substantially in the form of Exhibit B, including Xxxxxxx Xxxxxexecuted by the Indemnitors; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, MullinXxxxxxxx, Xxxxxxx & Hampton LLP Xxxxxxx and of Xxxxxxx Phleger & Xxxxxxxx each dated as of the Closing Date, in the form of Exhibit QH; (h) a letter from Ernst & Young LLP, which legal opinion shall be subject dated as of the Closing Date, confirming that no transaction entered into by the Company, and no other fact or circumstance relating to customary qualificationsthe Company, will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with generally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (i) a certificate executed by the Company and containing the representation and warranty Chief Executive Officer of the Company and the Signing Shareholder certifying that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “Company "Closing Certificate”Certificates"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective TimeClosing Date.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements Escrow Agreement in the form of Exhibit KC, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActShareholders; (b) Proprietary Information Agreements in the Escrow Agreement in a Company's standard form, executed by the form of Exhibit MShareholders and those Employees who will continue their employment with the Company after the Merger; (c) the employment offer letters Registration Rights Agreement in substantially the form attached hereto as of Exhibit ND, executed by the individuals identified on Exhibit EShareholders; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP Xxxxxxx, dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsE; (ie) a certificate executed by the Company Shareholders and containing the representation and warranty of the Company each Shareholder that each of the representations and warranties set forth in Sections 2 and 3 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “Company "Shareholders' Closing Certificate”"); (f) a letter from KPMG Peat Marwick, dated as of the Closing Date, confirming that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; and (jg) a certificate executed by the Secretary letter from Coopers & Xxxxxxx, dated as of the Closing Date, confirming management's assertion that the Company attaching is "poolable" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and certifying the Company’s current Certificate of Incorporationall published rules, Bylaws regulations and the resolutions policies of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the ClosingSEC; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (ph) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements the Escrow Agreement, executed by the Shareholders’ Representative and the Escrow Agent; (b) a Noncompetition Agreement in the form of Exhibit KC, executed by the Persons each individual identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit MSchedule 6.9(b); (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit OD, dated as of the Closing Date, executed by each Key Shareholder and each officer and director of the Persons Company; (d) the Audited 2003 Financial Statements; (e) agreements, satisfactory in form and substance to Parent, terminating the Acquired Corporation Contracts identified on Exhibit PSchedule 5.5; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement and notice referred to in Section 5.8(a)5.6, executed by the Company; (hg) a legal opinion of SheppardXxxx Xxxx Xxxx & Freidenrich LLP, Mullincounsel to the Company, Xxxxxxx & Hampton LLP dated as of the Closing Date, in substantially the form of Exhibit QE and containing no exceptions, which assumptions or qualifications that are not customarily included in legal opinion shall opinions relating to transactions similar to the Merger; (h) the Closing Payment Schedule, accompanied by detailed supporting documentation reasonably satisfactory to Parent (including written confirmations from Xxxx Xxxx Xxxx & Freidenrich LLP, KPMG LLP, Xxxxx Xxxxxxxx and RBC Capital Markets as to all amounts paid, owed and to be subject owed by each Acquired Corporation with respect to customary qualificationsservices performed by them through the Closing Date); (i) the Closing Option Schedule, accompanied by detailed supporting documentation reasonably satisfactory to Parent; (j) a certificate certificate, executed by on behalf of the Company and by an officer of the Company, containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.6, 6.7, 6.10, 6.11, 6.12, 6.13, 6.14 and 6.10 6.15 have been duly satisfied (the “Company Closing Certificate”)satisfied; and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements a Certification and Agreement in the form of Exhibit KE, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes holders of the Securities ActSenior Preferred Stock; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit OH, executed by holders of more than two-thirds of the Persons identified on Company's outstanding capital stock; (c) the termination of all outstanding warrants to purchase Company capital stock as set forth in Section 5.7(a), other than the Leader Warrants; (d) the Escrow Agreement in the Form of Exhibit PI shall have been executed and delivered by each of the parties thereto; (e) a questionnaire (containing representations regarding such shareholder's or lender's financial position and investment sophistication to assure that any issuances of securities will meet the standards imposed by the Securities Act and applicable state securities laws) completed and executed by each of the Senior Preferred Shareholders and creditors of the Company that receive shares of Parent Common Stock to satisfy debts of the Company, with responses satisfactory to Parent in its sole discretion; (f) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who had any involvement in the development of any material intellectual property used by or developed in part by the Company and that have not already signed such agreements, agreements (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(b) of the Disclosure Schedule); (g) the statement statement(s) relating to FIRPTA matters referred to in Section 5.8(a5.9(a), executed by the Company; (h) a legal opinion of Sheppardthe Company's counsel, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsJ; (i) a certificate executed by the Company and containing the representation and warranty on behalf of the Company by its Chief Executive Officer and Chief Financial Officer containing the certification that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 Section 6 have been duly satisfied (the “Company "Officers' Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all directors and officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KSupport Agreements, duly executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” stockholders holding 95% of the Company for purposes Outstanding Capital Stock of the Securities ActCompany; (b) the Escrow Agreement in a the form of Exhibit MRestrictive Covenants Agreements, duly executed by each Person identified on Schedule 6.6(b); (c) the employment offer letters in substantially the form attached hereto as Exhibit NEquity Release Agreements, duly executed by the individuals identified on Exhibit Eeach Specified Person; (d) Noncompetition Agreements agreements, in form and substance reasonably satisfactory to Parent, terminating or amending the form of Exhibit F, executed by the individuals agreements identified on Exhibit ESchedule ‎ 4.6 in accordance with Section 4.6; (e) a Release in the form of Exhibit O, certificate duly executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees behalf of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion chief executive officer of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.1 through 6.5 and 6.7 through 6.10 have been duly satisfied (the “Company Closing Certificate”); (f) a spreadsheet, in form and substance reasonably satisfactory to Parent, containing the following information, together with a certificate duly executed on behalf of the Company by the chief executive officer and chief financial officer of the Company, containing the representation and warranty of the Company that all of such information is accurate and complete (and in the case of dollar amounts, properly calculated) as of the Closing in accordance with this Agreement and the Certificate of Incorporation (such spreadsheet, the “Merger Consideration Spreadsheet” and such accompanying certificate, the “Merger Consideration Spreadsheet Certificate”): (i) (A) the Closing Cash Amount; (B) the aggregate amount of all Company Transaction Expenses, together with a breakdown thereof (including the aggregate dollar amount of any Expenses relating to the D&O Tail (including any premium payable for the D&O Tail) and any Employment Taxes); (C) the Closing Indebtedness Amount, together with a breakdown thereof; (D) the Accrued Tax Amount; (E) the Closing Working Capital Excess (if any); (F) the Closing Working Capital Shortfall (if any); (G) the Cash Consideration; and (H) the Parent Trading Price; (ii) with respect to each Person who is a stockholder of the Company immediately prior to the Effective Time or a Converted Award Holder: (A) the name and address of record of each such Person, including such Person’s email address, if available; (B) the number of shares of Outstanding Capital Stock of each class and series held by such stockholder (on a certificate-by-certificate basis and including certificate numbers), or in the case of a Converted Option Holder, the number of Options and exercise price for each Option, or in the case of a Converted RSU Holder, the number of RSUs; (C) the portion of the Cash Consideration and Initial Stock Consideration (including cash in lieu of fractional shares) that such Person is entitled to receive pursuant to Section 1.5(b) or 1.6 before deduction of any amounts in the Holdbacks and amounts to the Expense Fund attributable to such Person (in each case, on a certificate-by-certificate or award-by-award basis and in the aggregate); (D) the portion of the Holdbacks with respect to the shares of Outstanding Capital Stock or Converted Awards held by each such Person pursuant to Section ‎1.12 (determined on a certificate-by-certificate or award-by-award basis and in the aggregate); (E) the portion of the Expense Fund with respect to the shares of Outstanding Capital Stock or Converted Awards held by each such Person pursuant to Section ‎10.1(e) (determined on a certificate-by-certificate or award-by-award basis and in the aggregate); (F) the net amount of the portion of the Cash Consideration and Initial Stock Consideration to be paid or issued to such Person in accordance with Section 1.5(b) or 1.6 (after deduction of any amounts retained in the Holdbacks and the Expense Fund that are attributable to the shares of Outstanding Capital Stock or Converted Awards held by such stockholder); (G) whether any Taxes are to be withheld in accordance with Section 1.11(h) from the consideration that such Person is entitled to receive pursuant to this Agreement, including any portion thereof retained in the Holdbacks and the Expense Fund, and, if so, the jurisdiction(s) in which such withholding is required; and (H) such Person’s Indemnification Percentage; and (iii) with respect to each Noteholder: (A) the name and address of record of each such Noteholder, including such Noteholders’ email address, if available; (B) the aggregate dollar amount payable with respect to each Outstanding Company Note held by such Noteholder pursuant to the applicable Payoff Letter delivered by such Noteholder; (C) the cash consideration (including cash in lieu of fractional shares) that such Noteholder is entitled to receive pursuant to such Noteholder’s Note Surrender Agreement and Payoff Letter(s) before deduction of any amounts retained in the Expense Fund that are attributable to such Noteholder (in each case, on a note-by-note basis and in the aggregate); (D) the portion of the Holdbacks that is attributable to the Outstanding Company Notes held by each such Noteholder pursuant to Section ‎1.12 (determined on a note-by-note basis and in the aggregate); (E) the portion of the Expense Fund with respect to the shares of Outstanding Company Notes held by each such Noteholder pursuant to Section ‎10.1(e) (determined on a note-by-note basis and in the aggregate); (F) the portion of the Initial Stock Consideration to be issued to such Noteholder in accordance with such Noteholder’s Note Surrender Agreement and Payoff Letter(s); and (G) such holder’s Indemnification Percentage; and (iv) a funds flow spreadsheet, in form and substance reasonably satisfactory to Parent, showing: (A) the aggregate cash amount to be delivered by Parent to the Payment Agent at or promptly after the Effective Time pursuant to Section 1.11(a); (B) the cash amounts to be distributed by or on behalf of Parent to: (1) legal counsel and other service providers to the Acquired Companies; and (2) other recipients of payments in connection with the Contemplated Transactions; and (C) wire transfer instructions for each payment to be made by Parent or the Payment Agent reflected therein; (g) documentation, reasonably satisfactory to Parent, in support of the calculation of the amounts set forth in the Merger Consideration Spreadsheet; (h) the written resignations described in Section 4.10 of each individual who is an officer or director of each Acquired Company; (i) the Certificate of Merger, duly executed by the Company; (j) the FIRPTA Statement executed by the Company and evidence of the filing of the FIRPTA Notification; (k) written acknowledgments pursuant to which the Company’s outside legal counsel and any financial advisor, accountant or other Person who performed services for or on behalf of any Acquired Company, or who is otherwise entitled to any compensation from any Acquired Company, in connection with this Agreement or any of the Contemplated Transactions, acknowledges: (i) the total amount of fees, costs and expenses of any nature that has been paid to such Person in connection with this Agreement or any of the Contemplated Transactions; (ii) the total amount of fees, costs and expenses of any nature that is payable to such Person in connection with this Agreement or any of the Contemplated Transactions; and (iii) that upon receipt of the amount referred to in clause “(ii)” above, such Person will have been paid in full and is not (and will not be) owed any other amount by any Acquired Company with respect to this Agreement or the Contemplated Transactions; (l) a USB drive or other digital media evidencing the documents that were Made Available to Parent, which shall indicate, for each document, the date that such document was first uploaded to the virtual data room established by the Company in connection with the Contemplated Transactions; (m) a certificate executed by of the Secretary of the Company attaching Company, in form and substance reasonably satisfactory to Parent, certifying and attaching: (i) the Charter Documents of the Company’s current Certificate of Incorporation, Bylaws ; and (ii) the resolutions of adopted by the Company’s board of directors and the resolutions adopted by the stockholders approving of the Company to authorize and adopting adopt this Agreement, the Merger and the other transactions contemplated by this AgreementContemplated Transactions (including the stockholder approval referred to in Section 5.2, if applicable), and to waive all notice requirements under the Company’s certificate of incorporation applicable to the Merger and the other Contemplated Transactions; (kn) (i) executed assignments and licenses of Intellectual Property and Intellectual Property Rights, and related releases, in each case in form and substance reasonably satisfactory to Parent, from each Company Associate identified on Schedule 6.6(n)(i); (ii) executed assignments in a form that is reasonably acceptable to Parent evidencing assignment to the applicable Acquired Company of all Registered IP owned or purported to be owned by such Acquired Company and evidence of recordation of such assignments with each appropriate Governmental Entity; and (iii) evidence reasonably satisfactory to Parent that each Domain Name and the like used by each of the Acquired Companies has been registered to the applicable Acquired Company; (o) the Certificate Closing Balance Sheet; (p) evidence of Mergercancellation of all Equity Awards by action of the Board of Acquired Company, or Equity Award Termination Agreements, duly and timely executed pursuant to Section 1.6 by each individual who holds any Company Equity Awards; (q) Warrant Termination Agreements, duly executed by each individual who holds a Warrant; (r) Note Surrender Agreements, duly executed by each Noteholder; (s) the Payoff Letters; (t) evidence reasonably satisfactory to Parent that the Company has terminated the Company Benefit Plans referred to in Section 4.5; (u) Release Agreements, in substantially the form of Exhibit D (the “Releases”), dated as of the Closing Date and duly executed by: (i) stockholders holding 95% of the Outstanding Capital Stock of the Company; (ii) each individual who is a director or officer of any Acquired Company; and (iii) each member of senior management of the Company; (lv) evidence reasonably satisfactory to Parent of the Company Acknowledgments purchase of Payment and Releasethe D&O Tail in accordance with Section 4.13; (mw) a long-form certificate of good standing from the Secretary of State of the State of Delaware which Investor Suitability Documentation, duly executed by each Effective Time Holder who is dated within two Business Days prior to Closing with respect to the Companynot an Unaccredited Investor; (nx) an IRS Form W-9 or applicable IRS Form W-8, duly executed by the Securityholders’ Agent and each Noteholder; (y) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior joinder to the ClosingRegistration Rights and Lock-up Agreement, duly executed by each Effective Time Holder; and (oz) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer evidence reasonably satisfactory to Parent of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name execution and address continued effectiveness of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(acertain release agreement described on Schedule 6.6(z), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time...

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements : Indemnification Escrow Agreement substantially in the form of Exhibit K6.5(a), executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) Parent, the Escrow Agent identified in Exhibit B, the Designated Stockholders and the Stockholders' Agent (the "Indemnification Escrow Agreement"); Voting Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F6.5(b), executed by the individuals requisite number of Stockholders; fully executed offer letters from not less than four of the Company employees identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) 5.6; confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees of the Company and by all consultants and independent contractors to the Company who to the extent that these employees, consultants and independent contractors have not already signed such agreementsagreements or such agreements signed by these employees, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed consultants and independent contractors are not effective; a certificate delivered by the Company; (h) Company to Parent pursuant to which the Company represents and warrants to Parent that attached to such certificate are resolutions duly adopted by the unanimous consent of the Board of Directors and the requisite number of Stockholders of the Company adopting this Agreement and authorizing and approving the transactions contemplated by this Agreement; a legal opinion of SheppardPillsbury Winthrop LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, substantially in the form of Exhibit Q6.5(f); the statement referred to in Section 5.7(a), which legal opinion shall be subject to customary qualifications; (i) executed by the Company substantially in the form of Exhibit 6.5(g); a certificate executed by the Company Designated Stockholders and containing the representation and warranty of the Company each Designated Stockholder that each of the applicable representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”)satisfied; and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations resignation of all officers and directors of the Company, effective as of the Effective Time; Disbursement Agreement substantially in the form of Exhibit 6.5(j), requiring any Stockholder receiving Cash Consideration pursuant to this Agreement to surrender such Stockholder's Company stock certificate(s) in exchange for such disbursement, providing for the disbursement of the fees and expenses identified in Section 5.9 and Schedule 5.9, and providing an acknowledgement by the Stockholder tendering such stock certificate(s) and receiving such disbursement that he, she or it is bound by this Agreement including, without limitation, the requirement contained in Section 1.3(b) relating to the Indemnification Escrow Amount; and all Common Stock certificates of Stockholders shall be cancelled.

Agreements and Documents. Parent and the Company shall Merger Subsidiary will have received the following agreements and documents, each of which shall will be in full force and effect: (a) Affiliate Agreements a certificate executed on behalf of Company by its Chief Executive Officer confirming that the conditions set forth in Sections 5.1, 5.2, 5.3, 5.5, 5.6 and 5.7 have been duly satisfied; (b) a Joint Written Consent to Merger in the form of Exhibit K5.4(b) attached hereto and incorporated herein by reference of Company Board of Director’s and Company Majority Shareholders, among other provisions thereof, executed by the Persons identified on Exhibit L all members of Company Board of Directors and by any other Person who could reasonably be deemed to be an “affiliate” all of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit MMajority Shareholders; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention Company Shareholders’ Representations and assignment agreements, attached hereto as Exhibit H, Warranties executed by all employees Company Shareholders owning Company Common Stock and being entitled to receive Parent Common Stock under the Merger, approving the Merger and agreeing, among other provisions thereof, to a minimum holding period of such Parent Common Stock of the greater of the holding period required by SEC Rule 144(i) or twelve (12) months from the Effective Date, which, if not executed and delivered by the respective Company and Shareholders to Parent within thirty (30) days of the dissenters’ notice (the Dissenters’ Notice”) to Company Shareholders required by all consultants and independent contractors to Section 16-10a-1322 of the Utah Act (assuming the Merger is first approved by the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) Majority Shareholders and the statement referred to in Section 5.8(aClosing has taken place and there is an Effective Date), executed will automatically result in the exercise of Dissenters’ Rights by any of Company Shareholders for any failure on the Company; (h) a legal opinion part of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Dateany such holder to execute and deliver this instrument, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications5.4(c) attached hereto and incorporated herein by reference; (id) a certificate All Company Shareholders (and those of Parent, to the extent specifically indicated in Schedule 6.11, shall execute and deliver the Lock-Up/Leak-Out Agreement in the form of Exhibit 5.4(d) that is attached hereto and incorporated herein by reference; (e) Parent shall have received duly executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied contribution letters (the “Company Closing CertificateContribution Letters”) and/or general releases (the “General Releases”) in the forms of Exhibit 5.4(e).(i) or Exhibit 5.4(e)(ii), as applicable, which are attached hereto and incorporated herein by reference; and (jf) The holder of shares of Parent Common Stock set forth in Schedule 6.11 that has agreed to cancel certain shares of Parent Common Stock shall have cancelled the shares of Parent Common Stock set forth in such Schedule, and Parent shall have received a certificate duly executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet share cancellation agreement (the “Closing Payment ScheduleShare Cancellation Agreement”), duly certified ) in the form of Exhibit 5.4(f) attached hereto and incorporated herein by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10reference. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActReserved; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit FG hereto, executed by the individuals identified on Key Employees; (c) a FIRPTA Statement in the form of Exhibit EJ hereto, executed by the Company: (d) Stockholder Representation Letters in the form of Exhibit D hereto, executed by Merger Stockholders holding at least 90% of the outstanding shares of capital stock of the Company immediately prior to the Closing; (e) a Release Registration Rights Agreement in the form of Exhibit OM hereto, executed by Merger Stockholders holding at least 90% of the Persons identified on Exhibit Poutstanding shares of capital stock of the Company immediately prior to the Closing; (f) confidential invention and assignment agreements, attached hereto as an Escrow Agreement in the form of Exhibit HC hereto, executed by all employees the Escrow Agent and Merger Stockholders holding at least 90% of the outstanding shares of capital stock of the Company and by all consultants and independent contractors immediately prior to the Company who have not already signed such agreements, including Xxxxxxx XxxxxClosing; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, MullinXxxxx, Xxxxxxx & Hampton LLP Xxxxxxxxx, LLP, dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsL hereto; (ih) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.5, 6.7, 6.8, 6.10 and 6.10 6.11 have been duly satisfied (the “Company "Company's Closing Certificate”"); and; (ji) a certificate of merger executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from to be filed with the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing in accordance with respect to the CompanySection 1.3; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pj) written resignations of all officers and directors of the Company, effective as of the Closing Date; and (k) the valid and effective termination as of the Effective TimeTime of the agreements and provisions referred in Section 5.6 and the assignment to the Company as of the Effective Time of all intellectual property referenced in Section 5.6.

Agreements and Documents. Parent and the Company Surviving Corporation shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate An Escrow Agreement in substantially the form of Exhibit C, executed by the Shareholders' Agent and the other parties thereto, and the Escrow Consideration shall have been deposited thereunder; (b) Shareholder's Certificates in substantially the form of Exhibit D, executed by each of the Company's shareholders; (c) Employment Agreements in substantially the form of Exhibit G-1 or G-2, executed by the appropriate individuals identified on Exhibit F; (d) Noncompetition Agreements in substantially the form of Exhibit H-1 or H-2, executed by the appropriate individuals identified on Exhibit F; (e) a Lock-Up Agreement in substantially the form of Exhibit I, executed by each of the Designated Shareholders; (f) a Registration Rights Agreement in substantially the form of Exhibit J, executed by each of the shareholders of the Company; (g) a Release in substantially the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes shareholders of the Securities ActCompany; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (fh) confidential invention and assignment agreements, attached hereto agreements (containing no exceptions or exclusions as Exhibit Hto the scope of coverage) in substantially the form provided to Parent on or prior to the date of this Agreement, executed by all employees of the Company and by all current employees, consultants and independent contractors to of the Company who have not already signed such agreementsagreements and who are involved in or contributed to, the creation or development of any Company Proprietary Asset (including Xxxxxxx Xxxxxall individuals identified in Part 2.9(b) of the Disclosure Schedule); (gi) the statement referred to in Section 5.8(a5.11(a), executed by the Company; (hj) an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Parent, executed by Shearwater Polymers, LLC; (k) a legal opinion of SheppardBradley, MullinArant, Xxxxxxx Rose & Hampton White LLP, in a form reasonably acceptable to Parent, with respect to the matters set forth on Exhibit L; (l) a legal opinion of Xxxxxx Godward LLP in substantially the form set forth as Exhibit Q (or a similar opinion of such other counsel as may be reasonably agreed to by Parent and the Company in such form as may be reasonably agreed to by Parent and the Company), dated as of the Closing Date, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, such counsel may rely upon the form of Exhibit Q, which legal opinion shall be subject tax representation letter referred to customary qualificationsin Section 5.6); (im) a certificate executed by the Chief Executive Officer of the Company and the Designated Shareholders and containing the representation and warranty of the Company and the Designated Shareholders that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date as if made on the Closing Date (without giving effect to any "Material Adverse Effect" or other materiality qualifications, or any similar qualifications, contained or incorporated directly or indirectly in such representations and warranties) and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “Company "Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time; (o) the letter agreement dated May 14, 2001 in the form provided by the Company to Parent, executed by the Company and Xxxxxxxxx Xxxxxxxxx Xxxxxxxx; and (p) the letter agreement, in substantially the form set forth as Exhibit P, executed by Xxxxx Xxxxxx; and (q) the Schreeder/Xxxxx Amendments.

Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: : (a) Affiliate Agreements the Escrow Agreement, duly executed by the Selling Shareholders; (b) the Founders' employment agreements in the form of Exhibit KC attached hereto, duly executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; Founders. (c) the employment offer letters assignments and releases, in substantially the form attached hereto as Exhibit Nand substance reasonably satisfactory to Purchaser, duly executed by each of the individuals identified on Exhibit E; Founders pursuant to which the Founders irrevocably assign all of their rights in the Acquired Company IP to the Company. (d) Noncompetition Agreements a Release Agreement substantially in the form of Exhibit FD attached hereto, duly executed by each of the individuals Selling Shareholders, and each other Person identified on Exhibit E; Schedule 7.6(d); (e) a Release the Key Employees' employment agreements substantially in the form of Exhibit OE, duly executed by each of the Key Employees; (f) a certificate duly executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees chief executive officer or manager of each of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company Selling Shareholders and containing the representation and warranty of the Company such Selling Shareholders that each of the conditions set forth in Sections 6.17.1, 6.27.2 (expressly including Section 6.7), 6.4 7.4, 7.5, 7.8, 7.9, and 6.10 7.10 have been duly satisfied (the “Company Closing Certificate”); and (g) a duly executed waiver and release from Anritsu A/S, in the form of Exhibit F; (h) a duly executed consent from Xilinx Inc., in the form of Exhibit G; (i) a duly executed consent from Maxeler, in the form of Exhibit H; (j) a certificate duly executed by consent from GSI Technology Inc., in the Secretary form of Exhibit I; (k) duly executed payoff letters or other evidence, in form and substance reasonably satisfactory to Purchaser, from each outside legal counsel and any financial advisor or accountant who is entitled to any compensation from any Acquired Company due to services performed in connection with this Agreement or any of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; , in which such Person acknowledges: (kA) the Certificate total amount of Mergerfees, executed costs and expenses of any nature that is payable to such Person in connection with this Agreement and any of the transactions contemplated by this Agreement; and (B) that, upon receipt of the Company; amount referred to in clause “(A),” it will have been paid in full and will not be owed any other amount by any Acquired Company with respect to this Agreement or the transactions contemplated by this Agreement; (l) duly executed payoff letters from each Pay-Off Creditor, containing, in each case the Company Acknowledgments amounts and currency required to effect full repayment of Payment each respective component of the Pay-Off Amounts and Release; the wire transfer information of the Pay-Off Creditors; (m) a long-form certificate of good standing the written resignation letters from all the Secretary of State members of the State board of Delaware which is dated within two Business Days prior directors of each Acquired Company referred to Closing with respect to the Company; in Section 6.7; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five shareholders' register and minute books (5) Business Days prior complete and written up to the date of Closing) of each Acquired Company; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of legal opinion regarding the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held executed by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of counsel for the Company, effective as in substantially the form of Exhibit J. - 35 - 7.7. No Restraints. No temporary restraining order, preliminary or permanent injunction or cease and desist or other order preventing the consummation of the Effective Timetransactions contemplated by this Agreement, or imposing fines, assessments, costs, liabilities or penalties in respect thereof, shall have been issued by any court of competent jurisdiction or Governmental Body and remain in effect, and there shall not be any Legal Requirement enacted or deemed applicable to the transactions contemplated by this Agreement that makes consummation of such transactions illegal.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors certificate to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company effect that each of the conditions set forth specified in Sections 6.1, 6.2, 6.4 6.2 and 6.10 have been duly is satisfied in all respects, executed by the chief executive officer or chief financial officer of the Company (the “Company Closing Certificate”); and; (jb) a certificate certificate, dated as of the Closing Date and executed by the Secretary on behalf of the Company attaching and by its Secretary, certifying the Company’s current Certificate ’s: (i) certificate of Incorporation, Bylaws and incorporation; (ii) bylaws; (iii) board resolutions approving the resolutions consummation of the Company’s board of directors and stockholders approving and adopting this AgreementMerger, the Merger and the other transactions contemplated by this Agreement; , and the execution, delivery, and performance by the Company of its obligations under this Agreement; and (kiv) the Certificate of Merger, executed by the Company; Written Consent; and (l) the Company Acknowledgments of Payment and Release; (mv) a long-form certificate of good standing from under the Secretary of State laws of the State of Delaware which is Delaware, dated within two 10 Business Days prior to of the Closing with respect to Date; (c) the Certificate of Merger, duly executed by the Company; (nd) a Certificate the Certified Closing Report; (e) written acknowledgments pursuant to which the outside legal counsel and any financial advisor, accountant or other Person who performed services for or on behalf of Status of Foreign Corporation any of the Company Acquired Companies, or who is otherwise entitled to any compensation from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer any of the Company setting forthAcquired Companies, in connection with this Agreement, any of the transactions contemplated by this Agreement or otherwise, acknowledges: (i) the Closing Date Stockholder Liability Amounttotal amount of Transaction Expenses payable or has been paid to such Person in connection with this Agreement and any of the transactions contemplated by this Agreement or otherwise; and (ii) that it has been paid in full and is not (and will not be) owed any other amount by the name and address of each of Acquired Companies with respect to this Agreement, the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held transactions contemplated by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10.this Agreement or otherwise; (pf) written resignations of all officers each officer and directors director of the CompanyAcquired Companies, effective as of the Effective Time; (g) a statement from the Company, signed by an authorized officer of the Company, that the equity interests in the Company are not “United States real property interests” as defined in Section 897(c)(1) of the Code, such statement in form and substance reasonably satisfactory to Parent and conforming to the requirements of Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), and proof reasonably satisfactory to Parent that the Company has provided notice of such statements to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2); (h) lock-up agreements, in substantially the form attached hereto as Exhibit H (the “Lock-up Agreement”), executed and delivered by each Person receiving Parent Common Stock; (i) an Investor Questionnaire executed by each Stockholder who has executed a Joinder Agreement that is indicated as an “accredited investor” in the Certified Closing Report and; (j) a Joinder Agreement duly executed by Stockholders holding in the aggregate not less than 90% of the outstanding Company Capital Stock; (k) evidence reasonably satisfactory to Parent that the Company has complied with Section 1.5(f); (l) evidence reasonably satisfactory to Parent that the arrangements set forth on Schedule 6.6(l) have been terminated and are of no further force and effect; and (m) all other documents required to be entered into by the Company and the Stockholders pursuant to this Agreement or reasonably requested by Parent to convey the Company Equity to Parent or to otherwise consummate the transactions contemplated by this Agreement.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements Each Company Stockholder shall have executed such documents as may be required by Parent to determine such Company Stockholder’s qualification as an accredited investor as that term is defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended, or as a person with the financial sophistication required to be a purchaser pursuant to Rule 506(b)(2)(ii) of Regulation D. The Company agrees, if required under the provisions of Rule 506, to provide, at its sole expense, any Company Stockholder reasonably determined by Parent as not having the requisite financial sophistication with a purchaser representative who can provide such shareholder with such financial sophistication. (b) the Company Stockholders’ Agreement in the form of Exhibit KC, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit MStockholders; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of SheppardXxxxxxx XxXxxxxx, Mullin, Xxxxxxx & Hampton LLP Esq. dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsE; (id) the Escrow Agreement, executed by Xxxxx, in the form of Exhibit F (the “Escrow Agreement”); (e) evidence, reasonably satisfactory to Parent, as to the termination of the agreements referred to in Section 5.6; (f) confidential invention and assignment agreements, reasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements (including the individuals identified in Part 2.9(f) of the Disclosure Schedule); (g) a certificate executed by the Company Chief Executive Officer and containing the representation and warranty Chief Financial Officer of the Company representing and warranting that each of the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4 and 6.10 have been duly satisfied (the “Company Closing Officers’ Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (ph) written resignations of all directors and officers and directors of the Company, effective as of the Effective Time. (i) disclosure of the tax reserves referred to in Section 2.14(a)

Agreements and Documents. Parent and the Company The Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect:effect (except to the extent that any failure of an agreement or document to be in full force and effect is solely attributable to the Purchaser’s failure to execute and deliver such agreement or document): (a) Affiliate Agreements in the form of Exhibit KEscrow Agreement, duly executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActSeller; (b) a certificate duly executed on behalf of the Escrow Agreement Seller by all of the members of the board of directors of the Seller and containing the representation and warranty of the Seller that the conditions set forth in a Sections 7.1, 7.2, 7.3, 7.4, 7.8, 7.11, 7.12 and 7.13 have been duly satisfied (the form of Exhibit M“Seller Closing Certificate”); (c) the employment offer letters in substantially the form attached hereto as Exhibit N, FIRPTA Statement executed by the individuals identified on Exhibit ESeller; (d) Noncompetition Agreements the updated Disclosure Schedule as described in the form of Exhibit F, executed by the individuals identified on Exhibit ESection 5.3(c); (e) a Release in the form of Exhibit O, an Internal Revenue Service Form W-9 duly executed and completed by the Persons identified on Exhibit PSeller; (f) confidential invention and assignment agreementsan Assignment Agreement, attached hereto as Exhibit H, duly executed by all employees the Seller, in substantially the form of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx XxxxxExhibit D; (g) the statement referred to in Section 5.8(a)a Xxxx of Sale, duly executed by the CompanySeller, in substantially the form of Exhibit E; (h) a legal opinion of Sheppardfrom DLA Piper LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, legal counsel in substantially the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsF; (i) a certificate trademark assignment agreement in substantially the form of Exhibit G, duly executed by the Company Seller and containing the representation and warranty assigning all of the Company that each of trademarks included in the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (Transferred Assets to the “Company Closing Certificate”); andPurchaser; (j) a certificate patent assignment agreement in substantially the form of Exhibit H, duly executed by the Secretary Seller and assigning all of the Company attaching and certifying Patents included in the Company’s current Certificate of Incorporation, Bylaws and Transferred Assets to the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this AgreementPurchaser; (k) Ratification and Waiver Agreements, in substantially the Certificate form of MergerExhibit I, duly executed by the Company;all Seller Members; and (l) Confidentiality and Release Agreements, in substantially the Company Acknowledgments form of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”)Exhibit C, duly certified executed by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10all Seller Members. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. The Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate the Employment Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes of the Securities Actemployees listed in Exhibit I attached hereto; (b) the Escrow Retention Agreement in a executed by the form of Exhibit MCompany and each Key Employee; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit ERetention Agreement Side Letter; (d) Noncompetition Agreements the Lease Amendment, executed by Epistar Corporation; (e) the Escrow Agreement executed by the Stockholders’ Representative on behalf of the Selling Stockholders and the Escrow Agent; (f) a certificate signed on behalf of the Selling Stockholders by the Stockholders’ Representative representing and warranting after reasonable investigation that the conditions set forth in Section 6.1 and Section 6.2 have been duly satisfied (the “Compliance Certificate”); (g) a legal opinion of PuHua & Associates in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (gh) the statement referred to in Section 5.8(a), Promissory Note executed by the Company; (hi) the Proxy executed by each Selling Stockholder; (j) a legal opinion valid power of Sheppardattorney executed and delivered by each of the Selling Stockholders authorizing the Stockholders’ Representative to, Mullinamong other matters, Xxxxxxx & Hampton LLP execute and deliver this Agreement; (k) a certificate, dated as of the Closing Date, in signed by the form Chief Executive Officer of Exhibit Q, which legal opinion shall be subject to customary qualifications; the Company (i) a certificate executed by the Company and containing the representation and warranty attaching copies of the Company that Certificate of Incorporation and Bylaws, if any, and any amendments thereto, of each of the conditions set forth in Sections 6.1Acquired Companies, 6.2(ii) attaching a true, 6.4 correct and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary complete copy of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation stock ledger of the Company from the applicable Governmental Authority in each jurisdiction where it is required date of its incorporation through the Closing Date; (iii) certifying that attached thereto are true and correct copies of action by written consent or resolutions duly adopted by the Board of Directors of the Company which authorize and approve (A) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby, including the Control Share Purchase and (B) the payment of the Company’s Indebtedness by the Parent or, if applicable, the Acquisition Sub and the issuance of the Promissory Note, and (iv) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement and all other documents, instruments or agreements related thereto executed or to be qualified to do business, all of which are dated within five (5) Business Days prior to executed by the ClosingCompany; and (ol) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address resignations of each of the holders of the Company Capital Stock, Company Warrants directors and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options supervisors of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Acquired Company, effective as of the Effective TimeClosing Date; provided, however, that the resignation of Jxxxx Xxxx as a director of the Company shall be effective immediately after the Stockholders Meeting.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Employment Agreements in the form of Exhibit I, executed by the individuals identified on Exhibit H; (b) Non-competition Agreements in the form of Exhibit J, executed by the individuals identified on Exhibit H; (c) a Release in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit EDesignated Shareholders; (d) Noncompetition Agreements the agreement referred to in the form of Exhibit FSection 5.10, executed by the individuals identified on Exhibit Ecertain Company Shareholders; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, agreements (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(f) of the Disclosure Schedule); (gf) the statement referred to in Section 5.8(a5.11(a), executed by the Company; (g) Continuity of Interest Certificates in a form reasonably acceptable to both Company and Parent, executed by the Designated Shareholders; (h) a legal opinion of SheppardWhite & Lee XXX, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the a form of Exhibit Q, which legal opinion shall be subject reasonably acceptable to customary qualificationsboth Company and Parent; (i) a certificate executed by the Company and containing the representation and warranty legal opinion of Coolxx Xxxward LLP, dated as of the Company Closing Date, to the effect that each the Merger will constitute a reorganization within the meaning of Section 368 of the conditions set forth Code (it being understood that, in Sections 6.1rendering such opinion, 6.2, 6.4 such counsel may rely upon the tax representation letters referred to in Section 5.8(a) and 6.10 have been duly satisfied (the “Company Closing Certificate”Continuity of Interest Certificates referred to in Section 6.6(g); and); (j) a certificate executed by the Secretary Company's Chief Executive Officer and Chief Financial Officer certifying that each of the Company attaching representations and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.2, 6.3, 6.4 and 6.5 have been duly satisfied (the "Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement;'s Closing Certificate"); and (k) the Certificate of Merger, a certificate executed by the CompanyDesignated Shareholders and containing the representation and warranty of each Designated Shareholder that each of the representations and warranties set forth in Section 2 (as qualified to knowledge as set forth in each such representation and warranty) is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.2, 6.3, 6.4 and 6.5 have been duly satisfied (the "Designated Shareholders' Closing Certificate"); (l) an Escrow Agreement in the form of Exhibit F executed by the Designated Shareholders and the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the ClosingShareholders' Agent; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pm) written resignations of all officers and directors of the Company, effective as of the Effective Time. (n) Spousal Consents, in the form attached as Exhibit L, executed by the spouses of the Designated Shareholders. (o) Reseller Agreement in the form of Exhibit G executed by Parent and the Company.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Noncompetition Agreements in the form of Exhibit K, Exhibits E(a) and E(b) executed by the Persons identified on Exhibit L in Exhibits D(a) and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActD(b), respectively; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements Release in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees each of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by stockholders of the Company; (hc) an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Parent, executed by each of Technology Locator Corporation, Shorebreeze Associates, CMD Properties, Inc. and Ticon, Inc.; (d) a legal opinion of Sheppard, Mullin, Xxxxxxx Xxxxxxxxx & Hampton LLP dated Xxxxx PLLC as of the Closing Date, in the a form of Exhibit Q, which legal opinion shall be subject acceptable to customary qualificationsParent; (ie) a certificate executed by the Company and containing the representation and warranty of the Company that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made as of the Closing Date (subject to such exceptions as are necessary for accuracy) and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “"Company Closing Certificate”"); and; (jf) a certificate executed by the Secretary of the Company attaching and certifying as to the Company’s 's current Certificate of Incorporation, Incorporation and Bylaws and the resolutions of the Company’s board 's Board of directors Directors and stockholders approving and adopting this Agreement, the Merger Agreement and the other transactions contemplated by this Agreementrelating thereto; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pg) written resignations of all officers and directors of the Company, effective as of the Effective Time; (h) the Escrow Agreement in the form of Exhibit H, executed by the Stockholders' Agent and the other parties thereto, and the Escrow Shares shall have been deposited thereunder; (i) Affiliate Agreements in the form of Exhibit G (a), executed by the Persons identified on Exhibit G (b) and by any other Person who could reasonably be deemed to be an "affiliate" of the Acquired Corporations for purposes of the Securities Act; (j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and KPMG LLP, to the effect that, after reasonable investigation, PricewaterhouseCoopers LLP, is not aware of any fact concerning any of the Acquired Corporations or any of such Acquired Corporations' stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC.

Agreements and Documents. Parent and (and, where applicable, the Company Company) shall have received the following agreements and documents, each of which shall be in full force and effect: (aA) Affiliate Agreements letters setting forth offers of employment with the Company, executed by Parent and Xxxxxx van der Hooning and each of the employees set forth on Schedule 6.5(a); (B) a Release, Consent and Appointment of Shareholder Representative in the form of Exhibit KD, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes of the Securities ActCompany's shareholders; (bC) the Escrow Agreement Investment Representation Letters in a the form of Exhibit ME, executed by each of the Company's shareholders; (cD) the employment offer letters in substantially the form attached hereto as Exhibit NNondisclosure and Noncompetition agreements, executed by all current employees of the individuals identified on Exhibit E; (d) Noncompetition Agreements Company, and by all current consultants and independent contractors to the Company, in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (hE) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP Xxxxxx, dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject and substance satisfactory to customary qualificationsParent; (iF) a certificate executed by the Company and Principal Shareholder containing the representation and warranty of the Company Principal Shareholder that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3 and 6.10 6.4, and to the best of his Knowledge, Sections 6.8 and 6.9 have been duly satisfied (the “Company Closing Certificate”"PRINCIPAL SHAREHOLDER'S CLOSING CERTIFICATE"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pG) written resignations of all officers and directors of the Company, effective as of the Effective Time; (H) written resignations of the employees set forth on Schedule 6.8(h) together with severance agreements in form and substance satisfactory to Parent and duly executed by each such employee; (I) a copy, duly and validly executed by the Company and all applicable divisions of Chase Manhattan Bank ("CHASE"), of a services agreement that supercedes all prior services agreements between the Company and Chase, and that is otherwise in form and substance (including, without limitation, the scope of required services, the payment schedule and the revenue recognition therefore) satisfactory to Parent (the "CHASE CONTRACT"); (J) an Escrow Agreement in the form of Exhibit G, executed by the parties thereto; (K) written consent of the shareholders of the Company approving the principal terms of the Merger and other transactions contemplated by this Agreement and other agreements prepared in connection with the Merger, certified by the Secretary of the Company; (L) a letter from the Principal Shareholder, dated as of the Closing Date and addressed to Parent and Merger Sub, in form and substance satisfactory to Parent and Merger Sub, confirming that the Principal Shareholder does not meet the "size of person" threshold required under Section 7a(a)(2)(B) of the Xxxxxxx Act; (M) a certificate of the Secretary of the State of Delaware as of the Closing Date as to the legal existence and good standing of the Company in Delaware as of the Closing Date; and (N) a certificate of the treasurer of the Company certifying as to the payment of Taxes in Delaware.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements fully executed Escrow Agreement (the "Escrow Agreement") in the form of Exhibit Kand substance reasonably satisfactory to counsel for Parent and counsels for the Sellers' Representative, executed by which shall contain, without limitation, provisions regarding the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” following: (i) the allocation of the Company for purposes Escrow Shares (including with respect to any payments therefrom) among the Sellers in accordance with Schedule A, and (ii) the release of the Securities ActEscrow Shares on the first anniversary of the Closing Date, (iii) the registration of the Escrow Shares for trading, without any restrictions, immediately upon release from escrow, and (iv) such other terms and conditions as are standard and customary in transactions of this nature; (b) the Escrow Agreement Employment Agreements in a the form of Exhibit M; (c) to be agreed between Parent and the employment offer letters in substantially the form attached hereto as Exhibit NSellers' Representative, executed by eighty percent (80%) of the individuals identified on Exhibit EB; (dc) Noncompetition Agreements in the form of Exhibit Fto be agreed between Parent and the Sellers' Representative, executed by eighty percent (80%) of the individuals identified on Exhibit EB; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (fd) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (he) a legal opinion of SheppardXxxxx Xxxx & Co., Mullinin form and substance reasonably satisfactory to counsel for Parent, Xxxxxxx & Hampton LLP addressed to the Parent and dated as of the Closing Date, as to the matters set forth in the form of Exhibit QSections 2.1 (a), which legal opinion shall be subject to customary qualifications;2.3 and 2.20. (if) a certificate executed by the Company and containing the representation and warranty two Officers of the Company (but without personal liability thereto) certifying that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.2 and 6.10 6.3 have been duly satisfied (the “"Company Closing Certificate”"); and (jg) a certificate Lock-up agreements executed by each Key Employee in the Secretary of form and substance reasonably satisfactory to counsel for Parent and counsel for the Company attaching which shall contain terms and certifying conditions standard and customary in transactions of this nature, including a twelve-month restriction on the Company’s current Certificate sale of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated Common Stock by this Agreementsuch Key Employee; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (ph) written resignations of all officers and directors of the Company, effective as of the Effective TimeClosing Date; (i) certificates representing the Shares accompanied by share transfer deeds duly executed for transfer in blank; (j) a fully executed Marketing Agreement in the form of Exhibit C; (k) certificates representing the Debentures; and (l) Option Holder Consent Letter and Counterpart Signature Pages, executed by all of the Option Holders.

Agreements and Documents. Parent and (and, where applicable, the Company Company) shall have received the following agreements and documents, each of which shall be in full force and effect: (aA) letters setting forth offers of employment with the Company, executed by Parent and each of Gino Borland, Jan Drake and Susan O'Neill and each of the employees set xxxxx xx Xxhexxxx 0.0; (X) x Release in the form of Exhibit E, executed by each of the Company's shareholders; (C) Investment Representation Letters in the form of Exhibit F, executed by each of the Company's shareholders; (D) ratification of the Company's employment agreements, reasonably satisfactory in form and content to Parent, executed by all current employees of the Company, and by all current consultants and independent contractors to the Company (or, if any such Person has not signed such an agreement, a proprietary information and inventions agreement in the Company's standard form (with appropriate adjustments to be applicable to Parent), executed by each such Person), in the form of Exhibit G; (E) a legal opinion of Venture Law Group, a Professional Corporation, dated as of the Closing Date, in the form of Exhibit H; (F) a certificate executed by the Shareholder containing the representation and warranty of the Shareholder that each of the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4, and to the best of his Knowledge, Sections 6.8 and 6.9 have been duly satisfied (the "SHAREHOLDER'S CLOSING CERTIFICATE"); (G) written resignations of all directors of the Company, effective as of the Effective Time; (H) an Escrow Agreement in the form of Exhibit J, executed by the parties thereto. (I) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could be reasonably be deemed to be an “"affiliate” " of the Company for purposes as of the Effective Time within the meaning of the Securities Act; (bJ) a letter from Arthur Andersen LLP, auditors for the Parent, in a form reasonably satixxxxxxrx xx xxx Parent, to the effect that (i) the Escrow Agreement in Parent and the Company are "poolable" for accounting purposes under Accounting Principles Board Opinion No. 16 and (ii) the Parent may treat the Merger as a the form "pooling of Exhibit M;interests" for accounting purposes under Accounting Principles Board Opinion No. 16. (cK) written consent of the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees shareholders of the Company approving the principal terms of the Merger and other transactions contemplated by all consultants this Agreement and independent contractors to other agreements prepared in connection with the Company who have not already signed such agreementsMerger, including Xxxxxxx Xxxxx;certified by the Secretary of the Company; and (g) the statement referred to in Section 5.8(a), executed by the Company; (hL) a legal opinion of Sheppardletter from the Shareholder, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing DateDate and addressed to Parent and Merger Sub, in the form of Exhibit QM, which legal opinion shall be subject to customary qualifications; (iconfirming that the Shareholder does not meet the "size of person" threshold required under Section 7a(a)(2)(B) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10Clayton Act. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall Merger Subsidiary will have received the following agreements and documents, each of which shall will be in full force and effect: (a) Affiliate Agreements a certificate executed on behalf of Company by its Chief Executive Officer confirming that the conditions set forth in Sections 5.1, 5.2, 5.3, 5.5, 5.6 and 5.7 have been duly satisfied; (b) a Joint (in the form of Exhibit K5.4(b)) or Singular (respectively, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M5.4(b)(i) and Exhibit 5.4(b)(ii)) Company Board of Director’s and Company Majority Shareholders’ Written Consent to Merger, among other provisions thereof, executed by all members of Company Board of Directors and all of Company Majority Shareholders; (c) a Company Shareholders’ Representations and Warranties executed by all Company Shareholders owning Company Common Stock and being entitled to receive Parent Common Stock under the employment offer letters Merger, approving the Merger and agreeing, among other provisions thereof, to a minimum holding period of such Parent Common Stock of the greater of the holding period required by SEC Rule 144 or twelve (12) months from the Effective Date, which, if not executed and delivered by the respective Company Shareholders to Parent within thirty (30) days of the dissenters’ notice (the Dissenters’ Notice”) to Company Shareholders required by Section 16-10a-1322 of the Utah Act (assuming the Merger is first approved by the Company Majority Shareholders and the Closing has taken place and there is an Effective Date), will automatically result in substantially the exercise of Dissenters’ Rights by any of Company Shareholders for any failure on the part of any such holder to execute and deliver this instrument, in the form attached hereto as of Exhibit N, executed by the individuals identified on Exhibit E5.4(c); (d) Noncompetition duly executed Services Agreements with Messrs. Xxxxx and Xxxxxx in the form forms of Exhibit F5.4(d)(i) and Exhibit 5.4(d)(ii), executed by the individuals identified on Exhibit Erespectively; (e) a Release duly executed Founders’ Certificate by all Company Majority Shareholders in the form of Exhibit O, executed by the Persons identified on Exhibit P;5.4(e); and (f) confidential invention and assignment agreements, attached hereto duly executed respective Introduction Fee Releases for the persons named as Exhibit H, executed by all employees of such in the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, Disclosure Schedules in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”5.4(f); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Lock-up Agreements in the form of Exhibit K, EXHIBIT H executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” all of the Company for purposes of the Securities ActCompany's stockholders; (b) a properly completed and executed Status Letter and Release from each stockholder of the Escrow Agreement Company in a the form of Exhibit MEXHIBIT G; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto which have previously been delivered by the Company to Parent, as Exhibit H, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (gd) the statement referred to in Section 5.8(a), executed by an estoppel certificate from the Company's landlord, dated as of a recent date prior to the Closing Date and satisfactory in form and content to Parent; (he) a legal opinion of SheppardXxxx Xxxx Xxxx & Freidenrich LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsEXHIBIT I; (if) a certificate Amendment to Employment Agreement in the form of EXHIBIT J, executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1Xxxxxxx Xxxxxx, 6.2Xxxxxx Xxxxxxx, 6.4 Xxx Xxxxx, Xxxxxxx Xxxx and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this AgreementXxxxxx Xxxxx; (kg) a legal opinion of Xxxxxx Godward LLP, dated as of the Certificate Closing Date, to the effect that the Merger will constitute a reorganization within the meaning of MergerSection 368 of the Code (it being understood that, executed by in rendering such opinion, such counsel may rely upon the Companytax representation letters referred to in Section 5.7); (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (ph) written resignations of all officers and directors of the Company, effective as of the Effective Time; (i) a certificate signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company representing that the conditions set forth in Sections 6.1 and 6.2 have been duly satisfied (the "COMPANY COMPLIANCE CERTIFICATE"); and (j) a list setting forth the name and address of each Company stockholder entitled to receive the Merger Shares pursuant to Section 1.5(a)(i).

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KC, executed by the Persons identified on Exhibit L B and by any other Person who could reasonably be deemed to be an “"affiliate” " of the Company Acquired Corporations for purposes of the Securities Act; (b) the Escrow Agreement Employment and Noncompetition Agreements in a the form of Exhibit MD executed by Xxxx X. Xxxxx, Xxxx X. Xxxxxxx, Xxxxxx Xxxxxx and Xxxxxxx X. Xxxxx; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit FE, executed by Xxxxxxx X. Xxxxx and Xxxxxx Xxxxx; (d) a FIRPTA Statement in customary form, executed by each of the individuals identified on Exhibit EAcquired Corporations; (e) a Release in the form of Exhibit OF, executed by each of the Persons identified on Exhibit PStockholders; (f) confidential invention and assignment agreementsStockholder Representation Letters in the form of Exhibit G, attached hereto as executed by each of the Stockholders; (g) a Registration Rights Agreement in the form of Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the CompanyStockholders; (h) an Escrow Agreement in the form of Exhibit I, executed by each of the Stockholders and the Escrow Agent (the "Escrow Agreement"); (i) an LLC Escrow Agreement in the form of Exhibit J, executed by each of the Stockholders and the Escrow Agent (the "LLC Escrow Agreement"); (j) a legal opinion of SheppardBartko, MullinZankel, Xxxxxxx Tarrant & Hampton LLP Xxxxxx, P.C., dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsK; (ik) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(j)" shall not apply if the reason that PricewaterhouseCoopers LLP is unable to deliver the letter referred to in this clause "(j)" is due solely to actions taken by Parent or its affiliates); (l) a letter from BDO Xxxxxxx, LLP, dated as of the Closing Date, confirming that no transaction entered into by either of the Acquired Corporations, and no other fact or circumstance relating to either of the Acquired Corporations, will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with generally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (m) title insurance policies in amounts and containing such coverages and endorsements as Parent may reasonably require, insuring that fee simple title to the Transferred Real Property is held by the LLCs free and clear of all Encumbrances (other than the Permitted Encumbrances); (n) a certificate executed by each of the Company Stockholders and containing the representation and warranty of the Company each Stockholder that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.7, 6.9 and 6.10 6.12 have been duly satisfied (the “Company "Stockholders' Closing Certificate”"); and; (jo) a certificate of merger executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from to be filed with the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing in accordance with respect to the CompanySection 1.3; (np) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority documents referred to in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the ClosingSection 5.11(c); and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pq) written resignations of all officers and directors of all of the CompanyAcquired Corporations, effective as of the Effective TimeClosing Date.

Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: 9.4.1 New Employment Agreement executed by Mx. Xxxx Xxxxxxxxx and the Company on January 2, 2001, and attached hereto as Exhibit 9.4.1. 9.4.2 Certificates executed by an Officer of the Company, an Officer of Zxxxxxxxx, an officer of Tawton , and Cxxxx, certifying that each of the representations and warranties made by it and set forth in Section 4 are accurate in all material respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 9.1, 9.2 and 9.3 have been duly satisfied in the form attached as Exhibit 9.4.2 to this Agreement (acollectively the "Company Closing Certificate"); and (i) Affiliate Agreements An opinion, dated the Closing, of Law Offices of Sxxxxxxx Xxxxxxx, counsel to the Company, and, (ii) an opinion, dated the Closing, of Law Offices of Sxxxxxxx Xxxxxxx, counsel to Zxxxxxxxx, and (iii) an opinion, dated the Closing, of Simcocks, counsel to Tawton in the form of Exhibits 9.4.3 , 9.4.3(a) respectively attached hereto. 9.4.4 Validly executed Share Certificate reflecting the Purchased Shares in the name of the Purchaser accompanied by (i) share transfer deed duly executed by Cxxxx and (ii) legal opinion from Tawton's counsel confirming that the Purchased Shares were properly transferred to the ownership of the Purchaser in accordance with applicable law. 9.4.5 written resignations of all directors, except Yoav, of the Company, Zxxxxxxxx and Tawton, effective as of the Closing Date; 9.4.6 Special Resolutions of the Company's and of Zxxxxxxxx'x shareholders in the form of Exhibit K9.4.6(a) and 9.4.6(b) hereto, executed by which the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” Articles of Association of the Company for purposes and of Zxxxxxxxx shall be replaced with the Amended Articles attached hereto as Exhibit 9.4.6(a)(A) and 9.4.6(b)(A), 9.4.7 Resolutions of the Securities Act; (b) Board of Directors of the Escrow Company, of Zxxxxxxxx and of Tawton approving the Company's and the Sellers' execution of this Agreement and any other document contemplated hereby, the sale and transfer of the Purchased Shares against payment of the Purchase Price, all in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, 9.4.7. 9.4.8 The Company shall deliver to the Purchaser a duly executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements Management Agreement in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.109.4.8. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall will have received the following agreements and documents, each of which shall will be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed on behalf of Parent by the Company and containing the representation and warranty of the Company its Chief Executive Officer confirming that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.5, 6.6 and 6.10 6.7 have been duly satisfied (the “Company Closing Certificate”); andsatisfied; (jb) a certificate Joint or Singular Company Board of Director’s and Company Majority Shareholders’ Written Consent to Merger, among other provisions thereof, in the form of Exhibit 5.4(b) executed by the Secretary all members of the Company attaching Board of Directors and certifying the Company’s current Certificate all of Incorporation, Bylaws and the Company Majority Shareholders; (c) resolutions of the Company’s board Boards of directors Directors of Parent and stockholders of Merger Subsidiary, certified by the secretary of Parent, approving and adopting this Agreement, the Merger and the other transactions contemplated by this AgreementAgreement (by Parent as a Party and as the sole shareholder of Merger Subsidiary), including the Merger, the issuance of the Merger Consideration and the matters referred to in Section 1.8(b) of this Agreement or as otherwise required to complete the transactions contemplated hereby; (kd) the Certificate of Merger, a Company Shareholders’ Representations and Warranties executed by the Company; (l) the all Company Acknowledgments of Payment Shareholders owning Company Common Stock and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is being entitled to receive pursuant Parent Common Stock under the Merger, approving the Merger and agreeing, among other provisions thereof, to Sections 1.5(aa minimum holding period of such Parent Common Stock of the greater of the holding period required by SEC Rule 144 or twelve (12) months from the Effective Date, which, if not executed and delivered by the respective Company Shareholders to Parent within thirty (30) days of the Dissenters’ Notice to Company Shareholders required by Section 16-10a-1322 of the Utah Act (assuming the Merger is first approved by the Company Majority Shareholders and the Closing has taken place and there is an Effective Date), 1.6 will automatically result in the exercise of Dissenters’ Rights by any of Company Shareholders for any failure on the part of any such holder to execute and 1.7; and (iv) deliver this instrument, in the amount to be contributed to the Escrow Fund by Parent on behalf form of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.Exhibit 5.4(c);

Agreements and Documents. Parent Terayon and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate fully executed Escrow Agreement (the "Escrow Agreement") in the form and substance reasonably satisfactory to counsel for Terayon, the Sellers' Representative and counsel for the Company, which shall contain, without limitation, provisions regarding the following: (i) the release of the Escrow Shares on the first anniversary of the Closing Date, (ii) the sale of the Escrow Shares upon instruction of the Sellers' Representative (with the proceeds of such sale(s) to be deposited in the Escrow in lieu of the Escrow Shares), and (iii) such other terms and conditions as are standard and customary in transactions of this nature; (b) Employment and Non-Competition Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NE, executed by the individuals identified on Exhibit E;D; --------- (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (fc) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Terayon, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (hd) a legal opinion of SheppardXxxxx X. Ne'xxxx, MullinXxx-Artzi & Co. Adv. in form and substance reasonably satisfactory to counsel for Terayon, Xxxxxxx & Hampton LLP addressed to Terayon and dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (ie) a certificate executed by the Company and containing the representation and warranty two Officers of the Company (but without personal liability thereto) certifying that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.2 and 6.10 6.3 have been duly satisfied (the “"Company Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pf) written resignations of all officers and directors of the Company, effective as of the Effective TimeClosing Date; (g) certificates representing the Shares accompanied by share transfer deeds duly executed for transfer in blank; and (h) Option Holder Consent Letter and Counterpart Signature Pages, executed by all of the Option Holders.

Agreements and Documents. Parent and the Company The Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, employment offer letters accepted and executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes of the Securities Actindividuals set forth on Schedule 8.6(a); (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Employee Noncompetition Agreements in the form of Exhibit FC, executed by each of the individuals identified set forth on Exhibit ESchedule 8.6(a); (ec) a Release Releases in the form of Exhibit OD, executed by each of the Persons identified individuals set forth on Schedule 8.6(c); (d) Shareholder Noncompetition Agreements in the form of Exhibit PE, executed by each of the shareholders of the Company set forth on Schedule 8.6(d); (i) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 8.1(a), 8.2, 8.3, 8.5, 8.7, 8.8, 8.9, 8.10 and 8.11 have been duly satisfied (the "COMPANY CLOSING CERTIFICATE"); and (ii) a certificate executed on behalf of the Selling Shareholders by the Shareholders' Agent confirming that the condition set forth in Section 8.1(b) has been duly satisfied and, with respect to each Selling Shareholder, that the conditions set forth in Sections 8.2, 8.7, 8.8 and 8.9 have been duly satisfied (the "SELLING SHAREHOLDERS' CLOSING CERTIFICATE"); (f) confidential invention the written resignations of all officers and assignment agreements, attached hereto directors from positions as Exhibit H, executed by all employees an officer and director of the Company and by all consultants and independent contractors to effective as of the Company who have not already signed such agreements, including Xxxxxxx XxxxxClosing Date; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of SheppardBlank Rome Comisky & McCauley LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsExxxxxx F hxxxxx; (h) the valid and effective termination of the Shareholders Agreement and any other agreements among Company shareholders; (i) a certificate executed by the Company valid and containing the representation and warranty effective termination as of the Company Closing Date of provisions in Contracts that each provide any Person with rights of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing any nature with respect to the Company; (n) a Certificate board of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective except as provided generally by the Company's articles of incorporation and bylaws (or similar organizational documents) or by applicable law; (j) the Effective TimeEscrow Agreement in the form of Exhibit G hereto, executed by the Purchaser, the Shareholders' Agent and the Escrow Agent; and (k) Separate and final invoices from S.D. Goldfine & Company and Grant Thornton LLP with respect to fees and expxxxxx xxcurred by the Cxxxxxx xxx/xx the Selling Shareholders in connection with the transactions contemplated by this Agreement and a letter from Blank Rome Comisky & McCauley LLP providing that Blank Rome Comisky & McCauley LLX xxxx not xxxx xxcovery from the Company or the Xxxxxxxer xxxxx xxe Closing for any fees and expenses incurred by the Company and/or the Selling Shareholders.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: : (a) Affiliate Agreements in the form of Exhibit KG-1, executed by the Persons identified on Exhibit L G-3 and by any other Person who could reasonably Parent notifies the Company may be deemed to be an “affiliate” "Affiliate" of the Company for purposes of the Securities Act; ; (b) the Escrow Agreement A Release in a the form of Exhibit M; J, executed by each of the Signing Shareholders; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Conversion Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; Company and holders of not less than the percentages of each series of Preferred Stock specified in Section 2.27 hereof; (ed) a Release The General Escrow Agreement in the form of Exhibit O, K executed by the Persons identified on Company and Indemnifying Shareholders' Agent; (e) The Merger Expenses Escrow Agreement in the form of Exhibit P; N executed by the Company and Indemnifying Shareholder's Agent; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees Each of the Company Bridge Notes, together with related releases of security interests and by all consultants other liens in form satisfactory in form and independent contractors substance to Parent, so that Parent may repay the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; Bridge Loan; (g) the FIRPTA statement referred to in Section 5.8(a5.11(a), executed by the Company; ; (h) Continuity of Interest Certificates in the form of Exhibit I, executed by the Signing Shareholders; (i) a legal opinion of SheppardWilsxx Xxxxxxx, Mullin, Xxxxxxx & Hampton LLP dated xxted as of the Closing Date, in the form of Exhibit Q, which L); (j) a legal opinion shall be subject of Coolxx Xxxward (or, if Coolxx Xxxward for any reason does not render such legal opinion, a legal opinion of Wilsxx Xxxxxxx, xxted as of the Closing Date, to customary qualifications; the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (iit being understood that, in rendering such opinion, such counsel may rely upon the tax representation letters referred to in Section 5.8(a) and the Continuity of Interest Certificates referred to in Section 6.5(j)); (k) a letter from KPMG Peat Marwick LLP, confirming as of the Closing Date that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; 32 39 (l) a certificate executed by the Chairman and by the President of the Company and containing the their representation and warranty on behalf of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 6.1 through 6.5 have been duly satisfied (the “Company "Company's Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pm) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a)FIRPTA Statement, executed by the Company; (hb) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, an Escrow Agreement in the form of Exhibit QEXHIBIT C hereto, which legal opinion shall be subject to customary qualificationsexecuted by the Shareholders' Agent on behalf of the Shareholders and the Escrow Agent; (ic) a an agreement or certificate of merger executed by the Company and containing to be filed with the representation and warranty Secretary of State of the Company that each State of the conditions set forth California in Sections 6.1, 6.2, 6.4 accordance with Section 1.3 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a an agreement or certificate of merger executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from to be filed with the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing in accordance with respect to the CompanySection 1.3; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pd) written resignations of all officers and directors of the Company, effective as of the Effective TimeClosing Date; (e) a legal opinion of General Counsel Associates LLP regarding the disclosure of tax consequences described in the Form S-4 (to be filed as an exhibit to the Form S-4) and a legal opinion of General Counsel Associates LLP dated as of the Closing Date to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code, it being understood that (i) in rendering such opinion, such counsel may rely upon the tax representation letters referred to in Section 5.9 and (ii) if General Counsel Associates LLP is unable or unwilling to deliver the tax opinion referred to in this Section 6.4(f), this condition shall nonetheless be deemed to be satisfied if Xxxxxxx, Phleger & Xxxxxxxx LLP delivers such opinion; (f) a legal opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP substantially in the form of EXHIBIT F hereto; (g) Employment, Non-Competition and Non-Solicitation Agreements in the form of EXHIBIT G hereto, executed by Xxxxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxx Xxxxxxxx, Furgan Khan and Xxxxxxx Xxx. (h) The prior written consent to this Agreement, the Merger and the transactions contemplated by this Agreement in a form reasonably acceptable to General Counsel Associates LLP of: (i) Silicon Valley Bank and (ii) the other required consents set forth on Part 2.22 of the Company Disclosure Schedules. (i) Each of Parent and the Company shall have received a letter from the respective accounting firms set forth below, dated as of the Closing, as follows: (i) A letter from PricewaterhouseCoopers LLP, independent accountants for the Company, and addressed to the Company, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, PricewaterhouseCoopers LLP is not aware of any fact concerning the transactions contemplated by this Agreement or any of the shareholders or affiliates of the Company that could preclude Parent from accounting for the transactions contemplated by this Agreement as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC. (ii) A letter from PricewaterhouseCoopers LLP, independent accountants for Parent, and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, PricewaterhouseCoopers LLP concurs with Parent management's conclusion that as of the Closing Date, no conditions exist that would preclude Parent from accounting for the transactions contemplated by this Agreement as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements An Employment Agreement and a Noncompetition Agreement, in the form of Exhibit K, each case executed by the Persons identified on Exhibit L Xxxxx X. Xxxx and by any other Person who could in a form reasonably be deemed acceptable to be an “affiliate” of the Company for purposes of the Securities ActParent; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxxagreements and who have been reasonably designated by Parent (with notice of such designation having been made to the Company prior to the date of this Agreement); (gc) the statement referred to in Section 5.8(a5.7(a), executed by the Company; (hd) an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Parent, executed by the Company’s landlord; (e) a legal opinion of SheppardBose XxXxxxxx & Xxxxx LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the a form of Exhibit Q, which reasonably acceptable to Parent and its legal opinion shall be subject to customary qualificationscounsel; (f) a certificate, duly executed by the Secretary of the Company, certifying on behalf of the Company (i) as to the terms and effectiveness of the Company’s Articles of Incorporation and Bylaws, (ii) as to the valid adoption of resolutions of the Board of Directors of the Company (whereby this Agreement and the Merger and the other transactions contemplated hereby were approved); (iii) as to the valid adoption of resolutions of the shareholders of the Company (whereby this Agreement and the Merger and the other transactions contemplated hereby were adopted an/or approved); and (iv) as to the existence of the Company in Indiana and any other jurisdiction where the Company is qualified to conduct business as a foreign corporation. (g) a certificate executed by the Company and containing the representation and warranty Chief Executive Officer of the Company confirming that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.4, 6.7, 6.8, 6.11 and 6.10 6.16 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (ph) written resignations of all directors and officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Voting Agreements in the form of Exhibit KB-1, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActB-2; (b) the Escrow Agreement Employment Agreements in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, acceptable to Parent executed by the individuals identified on Exhibit EF; (dc) Noncompetition Agreements in the a form of Exhibit F, acceptable to Parent executed by the individuals identified on Exhibit EF; (ed) a Release Securityholder Representation Statements in the form of Exhibit OG, executed by each of the Persons identified on Exhibit PCompany's securityholders; (fe) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (gf) the statement referred to in Section 5.8(a)5.7, executed by the Company; (g) the Escrow Agreement in the form of Exhibit J, executed by the Securityholder Agent on behalf of each of the Company Shareholders, and also executed by the escrow agent (the "Escrow Agreement:); (h) an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Parent, executed by REFCO, LLC; (i) a legal opinion of SheppardSirotte & Permutt, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel; (j) the Registration Rights Agreement in the form of Exhibit QI, which legal opinion shall be subject to customary qualificationsexecuted by the Securityholder Agent on behalf of each of the Company Shareholders (the "Registration Rights Agreement"); (ik) a certificate executed by the Company and containing the representation and warranty on behalf of the Company by its Chief Executive Officer confirming that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.8, and 6.10 6.9 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Companysatisfied; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time; (m) evidence acceptable to Parent that certain amounts owing to Jamex Xxxxxxx xxxe been forgiven or retired and that Mr. Xxxxxxx xxx exercised certain options to purchase shares of Non-Voting Common Stock; (n) a market stand-off agreement executed by Jamex Xxxxxxx xxxeeing to not to sell or dispose of his shares of Parent Company Common Stock, other than those shares issuable pursuant to Section 5.15, during the period commencing with the filing by Parent of a registration statement for an underwritten public offering and ending on such date as may be specified by the managing underwriter of such offering, provided that such period shall not exceed the period agreed to by Parent's directors and officers with respect to shares owned by them in connection with such offering; and (o) articles of merger executed by the Company and Merger Sub to filed with the Secretary of State of the State of Alabama in accordance with Section 1.3.

Agreements and Documents. Parent and the Company Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate the agreement referred to in Section 5.7, executed by certain Company shareholders; (b) Retention Agreements in the form of Exhibit KG (or variations thereof agreed to in writing by the Parent), executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each employee of the Company for purposes of the Securities Act; (b) the Escrow Agreement in who holds either Company Stock or a the form of Exhibit MCompany Option; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements an Indemnification Escrow Agreement in the form of Exhibit F, D executed by the individuals identified on Exhibit E;Company Shareholders' Agent (as defined in Section 10.1) (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (fd) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, agreements (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(f) of the Disclosure Schedule); (ge) the statement referred to in Section 5.8(a), executed by the Company; (hf) a legal opinion of SheppardXxxxxxx Coie LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsE; (ig) a certificate executed by the Company and containing the representation and warranty of the Company Company's Chief Executive (but without personal liability thereto) certifying that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “"Company Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (ph) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Employment Agreements in the a form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed satisfactory to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NParent, executed by the individuals identified on Exhibit ED and Non-Competition Agreements in a form reasonably satisfactory to Parent executed by the individuals identified on Exhibit D; (db) Noncompetition Employment Agreements or amendments to existing Employment Agreements in the a form of Exhibit Freasonably satisfactory to Parent, executed by the individuals identified on Exhibit EG; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (hc) a legal opinion of SheppardAmit, MullinPollak, Xxxxxxx Matalon & Hampton LLP Co. Advocates and Notary, dated as of the Closing Date, substantially in the form of Exhibit Q, which H and a legal opinion shall be subject to customary qualificationsof Xxxxx Xxxxxxx LLP, dated as of the Closing Date, substantially in the form of Exhibit I; (id) a certificate executed by the Company Acquired Companies and containing the representation and warranty of the Company that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.5, 6.10 and 6.10 6.13 have been duly satisfied (the “Company Closing Certificate”); and (je) written resignations of all directors of the Acquired Companies, effective as of the Effective Time. (f) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate certificate of Incorporationincorporation, Bylaws bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (kg) a certificate executed by the Secretary of the Israeli Subsidiary attaching and certifying the Israeli Subsidiary’s current Articles of Association and Memorandum of Association; (h) a certificate executed by the Secretary of the BVI Subsidiary attaching and certifying the BVI Subsidiary’s current Articles of Association and Memorandum of Association; (i) the Certificate of Merger, executed by the Company; (lj) the Company Acknowledgments Acknowledgements of Payment and Release; (mk) (A) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days ten (10) business days prior to Closing with respect to the CompanyCompany and (B) a certificate of good standing from the applicable British Islands agency which is dated within ten (10) business days prior to Closing with respect to the BVI Subsidiary; (nl) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do businessof California, Colorado, Massachusetts, New York and Texas, all of which are dated within five ten (510) Business Days business days prior to the Closing; and; (om) Company Stockholder Certifications in the form set forth on Exhibit J executed and delivered by each Company Stockholder entitled to Stock Consideration pursuant to Section 1.5; (n) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Cash Consideration and the Closing Stockholder Stock Consideration that each holder of Company Capital Stock, Company Options and Company Warrants is entitled to receive; (ii) the Closing Company Share Number; (iii) the Outstanding Liabilities Amount; (iiiv) the Acquired Company Transaction Expense Amount; (v) the Company Proposed Total Asset Adjustment Amount; (vi) the Aggregate Employee Cash Payout and Aggregate Employee Stock Payout that each Employee Payout Recipient is entitled to receive; (vii) the name and address of each of the holders of the Company Capital Stock, Company Options and Company Warrants and Company Options each Employee Payout Recipient as of immediately prior to the Effective Time and Time; (viii) the number of shares of Company Capital Stock, Company Warrants and Company Options Stock of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (ivix) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor Indemnitor pursuant to Section 1.10.1.11; (o) each employee of the Acquired Companies listed on Schedule 6.6(o) shall have signed a release, in a form reasonably satisfactory to Parent, releasing the Acquired Companies and the Company Affiliates from all claims related to stock, stock options, or any other ownership interests in the Acquired Companies and their Affiliates; (p) written resignations the Escrow Agreement, substantially in the form of all officers Exhibit E, executed by the Escrow Agent and directors of the CompanyStockholders’ Representative; (q) Schedule 1.14(d) in a form to be mutually agreed upon by Parent and the Company and Schedule 4.6 and Schedule 4.12, effective as of in a form reasonably satisfactory to Parent; and (r) the Effective TimeKreos Acknowledgments.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” Investment Representation Statements from each stockholder of the Company for purposes who holds shares of Company Series E-1 Preferred Stock (such stockholders are referred to collectively as the Securities Act“Selling Stockholders”); (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by an officer of the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.3 and 6.10 6.5 have been duly satisfied (the “Company Closing Certificate”); and; (jc) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s Secretary in form and substance reasonably acceptable to Parent, attesting to, and attaching thereto: (i) the Company’s Certificate of Incorporation as in effect at the time of the Closing, (ii) the Company’s bylaws as in effect at the time of the Closing; (iii) the incumbency of the Company’s officers executing this Agreement and the other agreements and documents executed in connection with the Merger, (iv) resolutions of the board of directors and stockholders approving and adopting this Agreement, of the Company authorizing the consummation of the Merger and the other transactions contemplated by this Agreement; associated therewith, and (kv) the Certificate of Merger, executed by the Company; (l) a good standing certificate with respect to the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware and any other jurisdiction in which the Company is qualified to do business, dated within two Business Days prior no more than five (5) days before the Closing; (d) written evidence of termination of the Company Stockholder Agreements referred to Closing with in Section 5.4 (i.e., signatures of the Company and the other parties to such Company Stockholder Agreements that are required for termination); (e) an executed payoff letter from White & Xxx LLP, addressed to Parent and in the form and substance reasonably satisfactory to Parent, evidencing receipt of all amounts owed by the Company in respect of the transactions contemplated hereby and agreeing that the Company does not owe any amounts to White & Xxx LLP; (f) an executed payoff letter from Xxxxx Xxxxxxx & Co., addressed to Parent and in the form and substance reasonably satisfactory to Parent, stating that except as contemplated in Section 1.8(f) of this Agreement, there are no fees or expenses due to Xxxxx Xxxxxxx & Co. from the Company; (ng) a Certificate of Status of Foreign Corporation an Amendment to Parent’s Fifth Amended and Restated Stockholder’s Agreement, dated June 26, 2007 (the “Parent Stockholders’ Agreement”), in the form attached hereto as Exhibit H (the “Parent Stockholders’ Agreement Amendment”), executed by each stockholder of the Company from the applicable Governmental Authority in each jurisdiction where it is required to who will be qualified to do business, all receiving shares of which are dated within five (5) Business Days prior to the Closing; andParent Series E Preferred; (oh) a spreadsheet an Amendment to Parent’s Fourth Amended and Restated Registration Rights Agreement, dated June 26, 2007 (the “Closing Payment ScheduleParent Registration Rights Agreement”), duly certified in the form attached hereto as Exhibit I (the “Parent Registration Rights Agreement Amendment”), executed by an officer each stockholder of the Company setting forth: who will be receiving shares of Parent Series E Preferred; (i) the Closing Date Stockholder Liability Amount; (ii) Escrow Agreement, executed by the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time Agent and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10.Agent; (pj) written resignations of all officers and directors of the CompanyCompany and each Company Subsidiary, effective as of the Effective Time; and (k) such other certificates and agreements as reasonably requested by Parent and delivered by or on behalf of the Company at Closing, in form and substance reasonably acceptable to Parent.

Agreements and Documents. Parent and the Company Transcend shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KNoncompetition Agreements, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes of the Securities ActShareholders; (b) a Release, executed by each of the Escrow Agreement in a the form of Exhibit MShareholders; (c) the employment offer letters in substantially the form attached hereto as Exhibit Na Registration Rights Agreement, executed by each of the individuals identified on Exhibit EShareholders; (d) Noncompetition Agreements in the form of Exhibit Fa Subscription Agreement, executed by each of the individuals identified on Exhibit EShareholders; (e) a Release in the form of Exhibit Oan Affiliate Agreement, executed by each of the Persons identified on Exhibit PShareholders and each Person who would reasonably be considered an Affiliate of the Company under the Securities Act of 1933; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, Pledge Documents executed by all employees each of the Company and by all consultants and independent contractors Shareholders, together with stock certificates evidencing the shares of Transcend Common Stock to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx;be pledged to Transcend pursuant to Section 1.8. (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of SheppardJ. Xxxxxxx Xxxxxxx, MullinEsq., Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsI; (ih) a certificate executed by the Company and containing the representation and warranty of the Company Shareholders stating that each of the representations and warranties set forth in Section 2 of this Agreement is accurate in all material respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.6, 6.7 and 6.10 6.8 of this Agreement have been duly satisfied (the “"Company and Shareholders' Closing Certificate”"); (i) Consent and Estoppel Agreements in the form of Exhibit K from Xxxx Xxxxx Properties and the Xxxxxxxx Family Trust d/b/a The Global Plaza, the Company's landlords for the premises located at XX Xxxxxxxx Xxxxx, 0000 X.X. Cedar Hills Boulevard, Beaverton, Oregon and Suite B-2, 0000 Xx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx, respectively; (j) a Mutual Release and Estoppel Agreement in form and substance acceptable to Transcend, executed by the Company and Code Master Corporation ("CodeMaster"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Mergersuch other certified resolutions, executed documents or certificates as may be reasonably requested by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days Transcend prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10Date. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent JetFax and the Company DocuMagix shall have received ------------------------- the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KD-2, executed by the Persons identified on Exhibit L D-1 and by any other Person who could reasonably be deemed to be an “"affiliate” " of the Company DocuMagix for purposes of the Securities Act; (b) the Escrow an Employment and Noncompetition Agreement in a the form of Exhibit MG, executed by Maxon Xxxxxxx; (c) the employment offer letters a Noncompetition Agreement in substantially the form attached hereto as of Exhibit NH, executed by the individuals identified on Exhibit Eeach of Xxxxxx Xxxxx and Xxx Xxxxxxxxxx; (d) Noncompetition Agreements a legal opinion of Fenwick & West LLP, dated as of the Closing Date, in the form of Exhibit F, executed by the individuals identified on Exhibit EJ; (e) a Release in the form of Exhibit OI, executed by holders of (a) at least 90% of the Persons identified on Exhibit Poutstanding shares of DocuMagix Common Stock; (b) at least 82% of the outstanding shares of DocuMagix Series A Preferred Stock; and (c) all of the outstanding shares of DocuMagix Preferred Stock, excluding the DocuMagix Series A Preferred Stock; (f) confidential invention and assignment agreementsa letter from Price Waterhouse LLP, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, confirming that they are aware of no transaction entered into by DocuMagix, and no other fact or circumstance relating to DocuMagix, that would prevent JetFax from accounting for the Merger as a "pooling of interests" in accordance with generally accepted principles, 35 32 Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsSEC; (ig) a certificate executed by the Company Designated Shareholders and containing the representation and warranty of the Company each Designated Shareholder that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “Company "Designated Shareholders' Closing Certificate”"); (h) an Escrow Agreement in the form of Exhibit F, executed by DocuMagix and the Designated Shareholders (the "Escrow Agreement"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the CompanyDocuMagix, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements the Escrow Agreement, executed by the Stockholders’ Representative and the Escrow Agent; (b) an amendment to the Xxxxx Employment Agreement in the form of Exhibit KH, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit MXxxxxx Xxxxx; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) a Noncompetition Agreements Agreement in the form of Exhibit FD, executed by each of the individuals identified on Exhibit ESchedule 7.9(c); (ed) a Release in the form of Exhibit OE, dated as of the Closing Date, executed by each Key Stockholder, each officer and director of each of the Persons identified on Exhibit PAcquired Corporations, and by Xxxxx Xxxx and Xxxx Xxxxxxxxx; (e) the Closing Payment Schedule; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a6.7(a), executed by on behalf of the Company; (g) a legal opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the Company, dated as of the Closing Date and addressed to Parent and the Company, addressing the matters set forth in Schedule 7.9(g) and containing no exceptions, assumptions or qualifications that are not customarily included in legal opinions relating to transactions similar to the Merger; (h) a legal opinion of SheppardMorris, MullinNichols, Xxxxxxx Arsht & Hampton LLP Xxxxxxx, Delaware counsel to the Company, dated as of the Closing DateDate and addressed to Parent and the Company, addressing the matters set forth in Schedule 7.9(h) and containing no exceptions, assumptions or qualifications that are not customarily included in legal opinions relating to transactions similar to the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsMerger; (i) a certificate certificate, executed by on behalf of the Company and by an officer of the Company, containing the representation and warranty of the Company that each of the conditions set forth in Section 7.1 (as it relates to the representations and warranties of the Company), Section 7.2 (as it relates to the covenants and obligations of the Company) and Sections 6.17.3, 6.27.4, 6.4 7.5. 7.7, 7.8, 7.10, 7.12, 7.13, 7.14 and 6.10 7.15 have been duly satisfied; (j) a certificate, executed by the Key Stockholders, containing the representation and warranty of each Key Stockholder that the conditions set forth in Section 7.1 (as it relates to the representations and warranties of such Key Stockholder) and Section 7.2 (as it relates to the covenants and obligations of such Key Stockholder) have been duly satisfied (the “Company Closing Key Stockholder Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the CompanyAcquired Corporations, effective as of the Effective Time; and (l) such other documents as may be reasonably requested by Parent.

Agreements and Documents. Parent and the Company The Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect:effect (except to the extent that any failure of an agreement or document to be in full force and effect is solely attributable to the Purchaser’s failure to execute and deliver such agreement or document): (a) Affiliate Agreements in the form of Exhibit KEscrow Agreement, duly executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActSeller; (b) a certificate duly executed on behalf of the Escrow Agreement Seller by all of the members of the board of directors of the Seller and containing the representation and warranty of the Seller that the conditions set forth in a Sections 7.1, 7.2, 7.3, 7.4, 7.8, 7.11, 7.12 and 7.13 have been duly satisfied (the form of Exhibit M“Seller Closing Certificate”); (c) the employment offer letters in substantially the form attached hereto as Exhibit N, FIRPTA Statement executed by the individuals identified on Exhibit ESeller; (d) Noncompetition Agreements the updated Disclosure Schedule as described in the form of Exhibit F, executed by the individuals identified on Exhibit ESection 5.3(c); (e) a Release in the form of Exhibit O, an Internal Revenue Service Form W-9 duly executed and completed by the Persons identified on Exhibit PSeller; (f) confidential invention and assignment agreementsan Assignment Agreement, attached hereto as Exhibit H, duly executed by all employees the Seller, in substantially the form of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx XxxxxExhibit D; (g) the statement referred to in Section 5.8(a)a Xxxx of Sale, duly executed by the CompanySeller, in substantially the form of Exhibit E; (h) a legal opinion of Sheppardfrom DLA Piper LLP, Mullin, Xxxxxxx & Hampton LLP dated as of legal counsel to the Closing DateSeller, in substantially the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsF; (i) a certificate trademark assignment agreement in substantially the form of Exhibit G, duly executed by the Company Seller and containing the representation and warranty assigning all of the Company that each of trademarks included in the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (Transferred Assets to the “Company Closing Certificate”); andPurchaser; (j) a certificate patent assignment agreement in substantially the form of Exhibit H, duly executed by the Secretary Seller and assigning all of the Company attaching and certifying Patents included in the Company’s current Certificate of Incorporation, Bylaws and Transferred Assets to the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this AgreementPurchaser; (k) Ratification and Waiver Agreements, in substantially the Certificate form of MergerExhibit I, duly executed by the Company;all Seller Members; and (l) Confidentiality and Release Agreements, in substantially the Company Acknowledgments form of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”)Exhibit C, duly certified executed by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10all Seller Members. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate the Escrow Agreement in the form of Exhibit J; (b) Employment Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit NE, executed by the individuals identified on Exhibit ED; (dc) Noncompetition Consulting Agreements in the form of Exhibit FG, executed by the individuals identified on Exhibit EF; (d) Non-Competition Agreements in the form of Exhibit I, executed by the individuals identified on Exhibit F; (e) a Release Non-Competition Agreements in the form of Exhibit OI, executed by the Persons individuals identified on Exhibit PM; (f) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees of the Company Acquired Companies and by all consultants and independent contractors to (including the Company who have not already signed such agreements, including Xxxxxxx Xxxxxindividuals identified in Part 2.9(f) of the Disclosure Schedule); (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of SheppardXxxxxxx Coie LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsK; (ih) a certificate executed by the Company Acquired Companies and containing the representation and warranty of the Company that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.3, 6.4, 6.5, 6.10, 6.12 and 6.10 6.18 have been duly satisfied (the “Company Closing Certificate”); and (i) written resignations of all directors of the Company, effective as of the Effective Time. (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate certificate of Incorporationincorporation, Bylaws bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) a certificate executed by an officer of the Subsidiary attaching and certifying the Subsidiary’s current Articles of Association; (l) the Certificate of Merger, executed by the Company; (lm) the Company Acknowledgments Acknowledgements of Payment and Release; (mn) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days ten (10) business days prior to Closing with respect to the Company; (no) a Certificate of Status of Foreign Corporation of the Company Acquired Companies from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five ten (510) Business Days business days prior to the Closing; and; (op) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Per Share Common Stock Payment; (ii) the Per Share Series C-1 Preferred Stock Payment; (iii) the Per Share Series C-2 Preferred Stock Payment; (iv) the Per Share Series D Preferred Stock Payment; (v) the Estimated Working Capital Deficit Amount; (iivi) the Closing Company Share Number; (vii) the Outstanding Liabilities Amount; (viii) the name and address of each of the holders of the Company Capital Stock, Company Warrants Options and Company Options Warrants as of immediately prior to the Effective Time and Time; (ix) the number of shares of Company Capital Stock, Company Warrants and Company Options Stock of each class and series held by each such stockholder immediately prior to the Effective Time; (iiix) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a1.5 and 1.6 (including reference to whether a holder of Company Options has made an election to exercise pursuant to Section 1.6(a), 1.6 and 1.7); and (ivxi) the amount to be contributed to the Escrow Fund by Parent on behalf of each such Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.; and

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow General Release Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N5.5(a), executed by the individuals identified on Exhibit EStockholders; (b) Proprietary Information Agreements, executed by the Stockholders and Employees; (c) Employment Agreements in the forms attached hereto as Exhibits 5.5(c), respectively executed by Effgen, Vollman, Xxxx Xxxxx and Xxx Xxxxxxx ("Key Employees"); (d) Noncompetition Agreements an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and satisfactory in the form of Exhibit Fand content to Parent, executed by Markborough 300 WJ Limited Partnership (regarding 000 X. Xxxxx Street lease and Xxxxxx Xxxxx & Associates (regarding the individuals identified on Exhibit E000 X. Xxxxxx Drive lease); (e) a Release legal opinion of XxXxxxx Xxxxx & Xxxxx dated as of the Closing Date, substantially in the form of attached hereto as Exhibit O, executed by the Persons identified on Exhibit P5.5(e); (f) confidential invention and assignment agreements, attached hereto as Exhibit Hthe Escrow Agreement, executed by all employees of Parent, Agent, the Company Stockholders and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx XxxxxEscrow Agent; (g) a Trademark, Copyright and Domain Name Transfer Agreements in the statement referred to in Section 5.8(aforms attached hereto as Exhibits 5.5(g), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of certificate executed by the Company stating that the conditions set forth in this Article 5 have been duly satisfied (the "Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsCertificate"); (i) a certificate executed by the Company and containing the representation and warranty secretary of the Company that each attesting to the incumbency of the conditions set forth Company's officers, the authenticity of the directors' and stockholders' resolutions authorizing the transactions contemplated by this Agreement, and the authenticity and continuing validity of the Company's Articles of Incorporation and by-laws, and attaching the social security number of each stockholder listed in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (Part 2.3(b) of the “Company Closing Certificate”); andDisclosure Schedule; (j) a certificate executed by of the Secretary of State of Illinois as to the legal existence and good standing of the Company attaching and certifying in the Company’s current Certificate State of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this AgreementIllinois; (k) the Certificate of Mergersuch other documents, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options instruments or certificates as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10may reasonably request. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company BackWeb shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Copies of resolutions of the Board of Directors of Seller, authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby. (b) The Employment Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit ND, executed by the individuals identified on Exhibit EC; (dc) Noncompetition Non-competition Agreements in the form of Exhibit FE, executed by the individuals identified on Exhibit EC; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (fd) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to BackWeb, executed by all employees of the Company and by all Seller's (1) employees, (2) former employees, (3) consultants and independent contractors, and (4) former consultants and former independent contractors to that work or have worked in the Company Business who have not already signed such agreementsagreement; provided that no such agreements will be required of the Persons identified in clauses (2), including Xxxxxxx Xxxxx(3) and (4) whose jobs or services provided did not materially relate to the Purchased Assets; (ge) fully executed Escrow Agreement (the statement referred "ESCROW AGREEMENT") in form and substance reasonably satisfactory to in Section 5.8(a), executed by counsel for BackWeb and counsel for the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit QSeller, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by contain, without limitation, provisions regarding the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forthfollowing: (i) the release of the Escrow Payment and of $1,350,000 worth of shares of the Escrow Shares upon the termination of a twelve (12) month period commencing on the Closing Date Stockholder Liability AmountDate, provided that (a) the Purchaser has successfully retained the services of the Key Employees for such period (unless either of the Key Employees has become incapacitated at any time following the Closing, in which case this condition shall be deemed to have been satisfied with respect to such Key Employee), and (b) no claim for indemnification has been filed (unless being already settled) with the Escrow Agent during such period; (ii) the name and address of each release of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number remaining $1,550,000 worth of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent Shares upon termination of a 24 month period commencing on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the CompanyClosing Date, effective as of the Effective Time.provided that

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (ai) the Escrow Agreement in the form of Exhibit G, executed by the Escrow Agent and the Stockholders’ Representative; (ii) a Proprietary Rights Agreement in the form of Exhibit I, executed by each Key Employee; (iii) written resignations of all officers and directors of the Company, effective as of the Effective Time; (iv) a certificate signed on behalf of the Company by the President of the Company representing and warranting that the conditions set forth in Section 7.1, Section 7.2, and, with respect to the Company, Section 7.4 have been duly satisfied (the “Company Compliance Certificate”); (v) a certificate signed by the President of the Company certifying the accuracy in all respects of the Merger Consideration Spreadsheet; (vi) Employment Agreements in the form of Exhibit C, executed by each Key Employee set forth on Exhibit B; (vii) a certificate, dated as of the Closing Date, signed by the Secretary of the Company (i) attaching true and correct copies of the certificate of incorporation and bylaws, and any amendments thereto, of the Company, (ii) certifying that attached thereto are true and correct copies of actions by written consent or resolutions duly approved by the board of directors and stockholders of the Company which authorize and approve the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated hereby, including the Merger, and the Company Charter Amendment, (iii) certifying that there are no proceedings for the dissolution or liquidation of the Company and (iv) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement and all Related Agreements executed or to be executed by the Company; (viii) Affiliate Agreements in the form of Exhibit KM, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (bix) the Escrow Retention Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit FN, and the escrow agreement referenced therein, executed by the individuals identified each Key Employee set forth on Exhibit EB; (ex) a Release Non-Competition Agreements in the form of Exhibit O, executed by the Persons identified stockholder set forth on Exhibit P; (fxi) confidential invention and assignment agreementsBridge Note Election Notices, attached hereto as executed by each holder of Bridge Notes; and (xii) Optionee Consents in the form of Exhibit H, executed by all employees each holder of the a Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, Option identified in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by Consideration Spreadsheet as an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is individual entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10a Closing Option Payment. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements the agreement in the form of Exhibit KF-1, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActXxxxxxx X. Xxxx, Xx.; (b) the Escrow Non-Competition Agreement in a the form of Exhibit MG, executed by Xxxxxxx X. Xxxx, Xx. and the agreement in the Form of Exhibit F-2, executed by Xxxx Xxxxxx; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Confidential Invention Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees and former employees of the Company Target (other than non-managerial administrative and clerical employees) and Consultant Confidential Information Agreements executed by all consultants and independent contractors and former consultants and former independent contractors to the Company Target who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (hd) a legal opinion of Sheppard, MullinXxxxxxxx, Xxxxxxx & Hampton LLP Xxxxxxx, dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsH; (ie) a certificate executed by the Company Chief Executive Officer of Target and containing the representation and warranty of the Company Target that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4 and 6.10 6.5 and 6.7 have been duly satisfied (the “Company "Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (kf) an Escrow Agreement in the Certificate form of MergerExhibit I, executed by Parent, Target and the CompanyAgent (the "Escrow Agreement"); (lg) Parent shall have received an Investment Representation and Appointment of Agent Letter in the Company Acknowledgments form attached hereto as Exhibit J executed by each holder of Payment capital stock of Target and Releasefrom each holder of a Target Option; (mh) Parent shall have received a long-release in the form certificate attached hereto as Exhibit K from each holder of good standing capital stock of Target and from the Secretary each holder of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Companya Target Option; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the CompanyTarget, effective as of the Effective Time; and (j) written evidence of the termination without exercise of each Target Warrant.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect, as applicable: (a) Affiliate Agreements in the form of Exhibit KExclusivity Agreements, duly executed and delivered by the Persons identified on Schedule 5.2(d); (b) the Noncompetition Agreements, duly executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit MSchedule 6.6(b); (c) Joinder and Release Agreements, substantially in the employment offer letters in substantially forms of Exhibit D or as otherwise agreed by Parent (the form attached hereto as Exhibit N“Releases”), duly executed by each of the individuals Persons identified on Exhibit ESchedule 6.6(c) (without duplication); (d) Noncompetition Agreements in the form of Exhibit FEscrow Agreement, duly executed by the individuals identified on Exhibit ESecurityholders’ Agent and the Escrow Agent; (e) a Release agreements, in form and substance reasonably satisfactory to Parent, terminating or amending the form of Exhibit O, executed by the Persons agreements identified on Exhibit PSchedule 4.6 in accordance with Section 4.6; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, a certificate duly executed on behalf of the Company by all employees the chief executive officer of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company certifying that each of the conditions set forth in Sections 6.1, 6.2, 6.4 6.1 and 6.10 6.2 have been duly satisfied (the “Company Closing Certificate”); (g) a spreadsheet, in form and substance reasonably satisfactory to Parent, containing the following information, together with a certificate duly executed on behalf of the Company by the chief executive officer and chief financial officer of the Company, certifying that all of such information is accurate and complete (and in the case of dollar amounts, properly calculated) as of the Closing (such spreadsheet and accompanying certificate, the “Merger Consideration Spreadsheet”): (i) (A) the calculation of the Estimated Adjusted Transaction Value, (B) the aggregate dollar amount of the cash and cash equivalents of the Company as of the Closing, (C) the aggregate amount, as of immediately prior to the Closing, of all unpaid Company Transaction Expenses, (D) the aggregate amount, as of immediately prior to the Closing, of all unpaid Indebtedness for Borrowed Money of the Acquired Companies; (E) the Current Assets and all amounts used in calculating the Current Assets; (F) the Current Liabilities and all amounts used in calculating the Current Liabilities; (G) the estimated Net Working Capital and all amounts used in calculating the estimated Net Working Capital; (H) the estimated Net Working Capital Shortfall Amount, if any (the “Estimated Net Working Capital Shortfall Amount”); (I) the estimated Net Working Capital Surplus Amount, if any (the “Estimated Net Working Capital Surplus Amount”); (J) the Aggregate COC Amount; (K) the Employment Tax Amount; (L) the Closing Participation Per Share Amount with respect to each class and series of Outstanding Capital Stock; (M) the Fully Diluted Company Share Number; (N) the Aggregate Liquidation Preference Amount; (O) the Per Share Escrow Contribution Amount with respect to each class and series of Outstanding Capital Stock; (P) the Per Share NWC Holdback Amount with respect to each class and series of Outstanding Capital Stock; and (Q) the Per Share Expense Fund Amount with respect to each class and series of Outstanding Capital Stock; (ii) with respect to each Person who is a securityholder of the Company immediately prior to the Effective Time: (A) the name and address of record of each such securityholder; (B) the number of shares of Outstanding Capital Stock of each class and series held by each such stockholder or subject to any Company Option, Company RSU or Company Warrant held by such securityholder; (C) the consideration that each such securityholder is entitled to receive pursuant to Section 1.5 (on a class-by-class and series-by-series basis) and/or Section 1.6 (based on the aggregate number of shares of each class or series subject to all Company Options, Company RSUs and/or Company Warrants held by such securityholder); (D) the cash amount to be contributed to the Escrow Fund with respect to the equity securities held by each such securityholder; (E) the cash amount to be contributed to the Expense Fund by such equityholder; (F) the cash amount to the contributed to the NWC Holdback Fund by such equityholder; (G) the total amount of Taxes to be withheld in accordance with Section 1.9(h) from the consideration that each such securityholder is entitled to receive pursuant to Section 1.5 and/or Section 1.6; (H) the net cash amount to be paid to each such securityholder at Closing upon surrender of such stockholder’s Company Stock Certificates, stock option agreements, Company RSU agreements or Company Warrants (or Lost Certificate Affidavits) in accordance with Section 1.9 or otherwise pursuant to Section 1.6 (after deduction of any amounts to be contributed to the Escrow Fund, the NWC Holdback Fund and the Expense Fund by such securityholder and any Taxes to be withheld in accordance with Section 1.9(h)); and (I) such securityholder’s Pro Rata Share. (h) if requested by Parent a reasonable time prior to the Closing, documentation, reasonably satisfactory to Parent, in support of the calculation of the amounts set forth in the Merger Consideration Spreadsheet; (i) the written resignations described in Section 4.10 of each officer and director of each Acquired Company; (j) a certificate the Certificate of Merger, duly executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, FIRPTA Statement executed by the Company; (l) all of the Key Employee Offer Letters shall be in full force and effect and shall not have been revoked, rescinded or otherwise repudiated by the respective signatories thereto, and no such employee shall have terminated his or her employment with the Company Acknowledgments (or one of Payment its Subsidiaries, as applicable) or indicated to a director, officer or employee of any Acquired Company an intention (whether formally or informally) to terminate, or taken action toward terminating, his or her employment with the Company (or one of its Subsidiaries, as applicable) at or prior to the Closing, or with the Surviving Corporation or Parent following the Closing. All of such employees (A) shall have satisfied Parent’s customary new hire requirements; (B) shall have executed Parent’s form of Employee and ReleaseConfidentiality Agreement; and (C) shall be eligible to work in the United States for Parent; (m) at least 80% of the employees identified on Schedule 6.6(m) (A) shall have signed an offer letter that is reasonably acceptable to Parent, in each case effective on the first Business Day after the Closing Date; (B) shall not have terminated his or her employment with the Company (or one of its Subsidiaries, as applicable) or indicated to a long-director, officer or employee of any Acquired Company an intention (whether formally or informally) to terminate, or taken action toward terminating, his or her employment with the Company (or one of its Subsidiaries, as applicable) at or prior to the Closing, or with the Surviving Corporation or Parent following the Closing; (C) shall have satisfied Parent’s customary employee new hire requirements; (D) shall have executed Parent’s form certificate of Employee and Confidentiality Agreement; and (E) shall be eligible to work for Parent in the jurisdiction in which they currently perform services for the Company or its Subsidiaries; (n) the Pay Off Letters, duly executed by each of the creditors under the Contracts identified on Schedule 4.12; and UCC-3 termination statements (or any other applicable termination statement) in accordance with Section 4.12 of this Agreement, and all Liens applicable to any assets of the Acquired Companies shall have been removed; (o) certificates of good standing (or equivalents thereof) from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect and from each other jurisdiction set forth on Schedule 6.6(o) as to the Companygood standing (or equivalent thereof) of the applicable Acquired Companies in such jurisdiction; (np) a Certificate of Status of Foreign Corporation of one or more CD Roms or other digital media evidencing the Company from documents that were Made Available, which shall indicate, for each document, the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closingdate that such document was first Made Available; and (oq) a spreadsheet (Holder Acknowledgments, substantially in the “Closing Payment Schedule”)forms of Exhibit E or as otherwise agreed to by Parent, duly certified executed by an officer Persons holding (i) Company Options to purchase at least 75% of the shares of capital stock of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; subject to all Company Options and (ii) the name and address of each Company Warrants to purchase all of the holders shares of capital stock of the Company Capital Stock, subject to all Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10Warrants. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements the Escrow Agreement in the form of Exhibit KD, executed by the Persons identified on Exhibit L Escrow Agent and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActStockholders’ Representative; (b) the Escrow Agreement a General Release in a the form of Exhibit ME executed by each of the Key Stockholders of the Company and each of the Company’s officers and directors (other than those that are Key Stockholders); (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements a Proprietary Rights Agreement in the form of Exhibit F, executed by each Continuing Employee; (d) an offer letter in the individuals identified standard form of Parent executed by each Key Employee set forth on Exhibit EB; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time; (f) a certificate signed on behalf of the Company by the President of the Company representing and warranting that the conditions set forth in Section 7.1, Section 7.2 and Section 7.4 have been duly satisfied (the “Company Compliance Certificate”); (g) a legal opinion of Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP in the form of Exhibit G; (h) a certificate signed by the President of the Company certifying to his knowledge the accuracy in all respects of the Merger Consideration Spreadsheet; (i) a certificate, dated as of the Closing Date, signed by the Secretary of the Company (i) attaching true and correct copies of the certificate of incorporation and bylaws, and any amendments thereto, of the Company, (ii) certifying that attached thereto are true and correct copies of actions by written consent or resolutions duly approved by the board of directors and stockholders of the Company which authorize and approve the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated hereby, including the Merger (iv) certifying that there are no proceedings for the dissolution or liquidation of the Company, and (v) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement and all Related Agreements executed or to be executed by the Company; and (j) a Payoff Letter in the form of Exhibit J executed by each Person for whom Company Merger Costs are outstanding immediately prior to the Closing (the “Payoff Letters”).

Agreements and Documents. Parent and the Company EVS shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, fully executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed escrow agreement to be an “affiliate” entered into with the Escrow Agent setting forth the terms of the Company for purposes of Escrow Shares (the Securities Act; (b“Escrow Agreement”) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E;Schedule 6.5(a). (db) Noncompetition Agreements legal opinion from Xxxxx Xxxxx & Co., Law Offices in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(aSchedule 6.5(b), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP addressed to EVS and dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (ic) a certificate executed by the Company and containing the representation and warranty by: (i) an officer of the Company Company, and (ii) Ma’aragim, all certifying that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 Section 6 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (kd) the Certificate of Merger, lock-up agreement executed by Ma’aragim in the Companyform and substance reasonably satisfactory to counsel for EVS which shall contain terms and conditions standard and customary in transactions of this nature, including a six (6) month restriction on the sale, pledge, assignment, transfer or disposition of EVS Shares by Ma’aragim; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pe) written resignations of all officers and directors of the Company, effective as of the Effective Time.Closing Date; (f) certificate of the Israeli Registrar of Companies evidencing the removal of the charge currently placed on the Company’s assets; (g) Xxxx of Sale, Assignment and Assumption in the form attached hereto as Schedule 6.5(g) duly executed by the Company; (h) Trademark Assignment in the form attached hereto as Schedule 6.5(h) duly executed by the Company; (i) Irrevocable Instructions in the form attached hereto as Schedule 6.5(i) duly executed by the Company (the “Irrevocable Instructions”); (j) certificates representing all of the Shares accompanied by share transfer deeds in the form attached hereto as Schedule 6.5

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: PROVIDENCE AND CACHE SHALL HAVE RECEIVED THE FOLLOWING AGREEMENTS AND DOCUMENTS (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(aHEREIN REFERRED TO AS "TRANSACTION DOCUMENTS"), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications;EACH OF WHICH WILL BE IN FULL FORCE AND EFFECT AS OF THE EFFECTIVE TIME: (i) a ARTICLES OF MERGER: (ii) DOCUMENTS INDICATING THAT PROVIDENCE HAS RECEIVED, OR HAS RECEIVED A BINDING COMMITMENT FOR, THE EQUITY FINANCING; (iii) INVESTMENT REPRESENTATION LETTERS EXECUTED BY EACH OF THE CACHE SHAREHOLDERS; (iv) LEGAL OPINIONS OF XXXXXX & XXXXXXX, P.C., DATED AS OF THE CLOSING DATE, OUTSTANDING IN THE FORMS ATTACHED HERETO AT EXHIBIT VII; (v) A certificate executed by the Company both parties and containing the representation and warranty of the Company each party that each of the conditions representations and warranties set forth in Sections 6.1, 6.2, 6.4 Section 2 and 6.10 3 are accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions (unless waived) set forth in Section 6 have been duly satisfied (the “Company "Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (kvi) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written Written resignations of all officers and directors of the CompanyPROVIDENCE, effective as of the Effective Time; (vii) Agreement with Xxxxxxx Xxxx and Company, LLC to provide investment banking services for one year after the Effective Time; and (viii) An Information Statement prepared in accordance with Regulation 14C shall have been filed with the SEC and sent to the PROVIDENCE stockholders at least 20 days prior to the meeting of the PROVIDENCE stockholders called to approve this Agreement and the Merger.

Agreements and Documents. Parent and the Company Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements Noncompetition Agreement in the form of Exhibit KEXHIBIT D, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActXxxx Xxxxxxx; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit OEXHIBIT E, executed by the Persons identified on Exhibit PDesignated Shareholders; (fc) the agreement referred to in Section 5.6, executed by the Company and each Investor; (d) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, agreements (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(f) of the Disclosure Schedule); (ge) the statement referred to in Section 5.8(a)5.7, executed by the Company; (f) the Stock Purchase Agreement entered into by Xxxxx Xxxxx and Parent; (g) an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Parent, executed by the landlord under the real property lease for the real property located at 00000 Xxx Xxxxx Xxxxxxxxx, Xxxxx 0, Xxx Xxxxx, Xxxxxxxxxx; (h) a legal opinion of SheppardFenwick & West, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsEXHIBIT F; (i) a certificate executed by the Company Designated Shareholders and containing the representation and warranty of the Company each Designated Shareholder that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “Company "Designated Shareholders' Closing Certificate”"); and; (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time; (k) an Escrow Agreement, in the form of EXHIBIT G, executed by all of the Designated Shareholders.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (ai) Affiliate Agreements the Escrow Agreement in the form of Exhibit KG, executed by the Persons identified on Exhibit L Escrow Agent and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActShareholders’ Representative; (bii) the Escrow Agreement in a the form of Exhibit M; General Release (cincluding a related spousal consent) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, H executed by each of the individuals identified on Exhibit EKey Shareholders and each of the Company’s officers and directors (other than those that are Key Shareholders); (eiii) a Release Proprietary Rights Agreement in the form of Exhibit OI, executed by the Persons identified on Exhibit Peach Continuing Employee; (fiv) confidential invention and assignment agreements, attached hereto as Exhibit H, a offer letter or consulting agreement in the standard form of Parent executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxxeach Key Employee set forth on Exhibit B; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pv) written resignations of all officers and directors of the Company, effective as of the Effective Time; (vi) a certificate signed on behalf of the Company by the President and the Chief Financial Officer of the Company representing and warranting that the conditions set forth in Section 7.1, Section 7.2, and, with respect to the Company, Section 7.4 have been duly satisfied (the “Company Compliance Certificate”); provided that the certification by the Company’s officers set forth in such Company Compliance Certificate shall be qualified by and subject to any notifications made pursuant to Section 5.3; (vii) a legal opinion of Cxx Sxxxx Mxxxxxxx Incorporated in the form of Exhibit J; (viii) a certificate signed by the Chief Financial Officer of the Company certifying the accuracy in all respects of the Merger Consideration Spreadsheet; (ix) a Noncompetition Agreement in the form of Exhibit C, executed by each Key Employee set forth on Exhibit B; (x) a certificate, dated as of the Closing Date, signed by the Secretary of the Company (i) attaching true and correct copies of the articles of incorporation and bylaws, and any amendments thereto, of the Company, (ii) certifying that attached thereto are true and correct copies of actions by written consent or resolutions duly approved by the board of directors and shareholders of the Company which authorize and approve the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated hereby, including the Merger, and the Company Charter Amendment (iv) certifying that there are no proceedings for the dissolution or liquidation of the Company, and (v) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement and all Related Agreements executed or to be executed by the Company; (xi) Parent’s reasonable satisfaction with the terms and conditions of the Warrant Cancellation Agreement; (xii) evidence reasonably satisfactory to Parent of the termination of the First Amended and Restated Voting Agreement dated August 29, 2006, by and among the Company and certain of the Company Shareholders; (xiii) amendments to the Company’s exclusive patent license agreements with the Board of Regents of the University of Texas System and Txxxxx Xxxxxx, reasonably satisfactory to Parent; (xiv) evidence reasonably satisfactory to Parent of the termination of the Company’s Texas Emerging Technology Fund Grant Agreement and all obligations on the part of the Company thereunder in connection with the exercise or termination of the Company Warrant held by the State of Texas; (xv) Parent’s reasonable satisfaction with the arrangements providing for the pay-off and termination, including the release of any related security interests, of the Chase Line and the JPMorgan Note on or prior to Closing; and (xvi) the inventor(s) named in each of the patent applications identified in Part 3.9 of the Company Disclosure Schedule shall have executed assignments with regard to the related Intellectual Property Rights reasonably acceptable to Parent and such executed assignments shall have been submitted for recording with the appropriate Governmental Body.

Agreements and Documents. Parent and the Company The Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Employment Agreements in the form of Exhibit G, executed by each of the Founders and Cedxxx Xxxxxx; (b) Employee Noncompetition Agreements in the form of Exhibit H, executed by each of the Founders; (c) Employee Lock-Up Agreements in the form of Exhibit I, executed by each of the stockholders of the Company set forth on Schedule 8.5(c); (d) Financial Investors Lock-Up Agreements in the form of Exhibit J, executed by each of the stockholders of the Company set forth on Schedule 8.5(d); (e) Releases in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes of the Securities ActSelling Stockholders; (bi) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, certificate executed by each of the individuals identified Founders confirming that the conditions set forth in Sections 8.1(a), 8.2(a), 8.4, 8.6, 8.7, 8.8, 8.9, 8.11 and 8.12 have been duly satisfied (the "FOUNDERS' CLOSING CERTIFICATE"); and (ii) a certificate executed on Exhibit E; (d) Noncompetition Agreements in behalf of the form of Exhibit F, executed Selling Stockholders by the individuals identified on Exhibit E; Stockholders' Agent confirming that the conditions set forth in Sections 8.1(b) and 8.2(b) have been duly satisfied and with respect to each Selling Stockholder, that the conditions set forth in Sections 8.6, 8.7 and 8.8 have been duly satisfied (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx"SELLING STOCKHOLDERS' CLOSING CERTIFICATE"); (g) the statement referred to in Section 5.8(a), executed by written resignations of all directors of the Company, with the exception of Jeax-Xxxxxx Xxsat, from positions as directors of the Company, effective as of the Closing Date; (h) a legal opinion of SheppardBourgeois, MullinMuller, Xxxxxxx Pidoux & Hampton LLP Partners, dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsL hereto; (i) a certificate executed copy of the minutes of the meeting of the board of directors of the Company held on July 5, 2001, signed by the Chairman of the Board of the Company and containing the representation and warranty Secretary of the Company Company, evidencing that each of the conditions board resolution set forth in Sections 6.1, 6.2, 6.4 and 6.10 have Section 5.6(b) has been duly satisfied (the “Company Closing Certificate”); andadopted; (j) a certificate executed by the Secretary original stock ledger of the Company attaching and certifying in which the Company’s current Certificate Purchaser is registered as the owner of Incorporation, Bylaws and the resolutions all of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this AgreementCompany Shares; (k) the Certificate valid and effective termination of Merger, executed agreements among Company stockholders listed on Part 8.5 of the Founders' Disclosure Schedule by the Company;virtue of Section 6.7; and (l) the Company Acknowledgments of Payment valid and Release; (m) a long-form certificate of good standing from the Secretary of State effective termination as of the State Closing Date of Delaware which is dated within two Business Days prior to Closing provisions in Contracts that provide any Person with rights of any nature with respect to the Company; (n) a Certificate board of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective except as provided generally by the Company's articles of the Effective Timeincorporation and bylaws (or similar organizational documents) or by applicable law.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements the Escrow Agreement, executed by the Stockholders’ Representative and the Escrow Agent; (b) a Noncompetition Agreement in the form of Exhibit KD, executed by each of the Persons individuals identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit MSchedule 7.8(b); (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit OE, dated as of the Closing Date, executed by each Key Stockholder and each officer and director of each of the Persons identified on Exhibit PAcquired Corporations; (fd) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx XxxxxClosing Payment Schedule; (ge) the statement referred to in Section 5.8(a6.7(a), executed by on behalf of the Company; (f) a legal opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the Company, dated as of the Closing Date and addressed to Parent and the Company, addressing the matters set forth in Schedule 7.8(f) and containing no exceptions, assumptions or qualifications that are not customarily included in legal opinions relating to transactions similar to the Merger; (g) a legal opinion of Morris, Nichols, Arsht & Xxxxxxx, Delaware counsel to the Company, dated as of the Closing Date and addressed to Parent and the Company, addressing the matters set forth in Schedule 7.8(g) and containing no exceptions, assumptions or qualifications that are not customarily included in legal opinions relating to transactions similar to the Merger; (h) a legal opinion of Sheppardcertificate, Mullin, Xxxxxxx & Hampton LLP dated as executed on behalf of the Closing DateCompany by an officer of the Company, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Section 7.1 (as it relates to the representations and warranties of the Company), Section 7.2 (as it relates to the covenants and obligations of the Company) and Sections 6.17.3, 6.27.4, 6.4 7.5, 7.7, 7.10, 7.11, 7.12, 7.13, 7.14 and 6.10 7.15 have been duly satisfied; (i) a certificate, executed by the Key Stockholders, containing the representation and warranty of each Key Stockholder that the conditions set forth in Section 7.1 (as it relates to the representations and warranties of such Key Stockholder) and Section 7.2 (as it relates to the covenants and obligations of such Key Stockholder) have been duly satisfied (the “Company Closing Key Stockholder Certificate”); and; (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the CompanyAcquired Corporations, effective as of the Effective Time; (k) agreements, in form and substance reasonably satisfactory to Parent, terminating or amending the agreements identified on Schedule 6.14; (l) employment offer letters, in the forms previously provided by the Company to the applicable individuals on or about the date of this Agreement, countersigned by Xxxxx Judge and each of the individuals identified on Schedule 1.6; and (m) such other documents as may be reasonably requested by Parent.

Agreements and Documents. Parent and At the Company Closing, Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: (ai) Affiliate Agreements written assignments in the form attached hereto as Exhibit I (the “Form of Exhibit KAssignment”) duly executed by each Seller transferring and assigning all of the Purchased Securities outstanding immediately prior to the Closing; (ii) the Escrow Agreement, duly executed by the Sellers’ Representative; (iii) the Noncompetition Agreements, duly executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActSchedule 1.4(b)(iii); (biv) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in Release, substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit FC, duly executed by the individuals identified on Exhibit E; (e) a Release in the form each of Exhibit O, executed by the Persons identified on Exhibit PSchedule 1.4(b)(iv); (fv) confidential invention and assignment agreements, attached hereto as Exhibit Hin form and substance reasonably satisfactory to Purchaser, terminating the agreements identified in Schedules 6.7(i), including the termination of the Blocker Note in the manner described in Schedule 6.7 (i); (vi) assignments and releases, in form and substance reasonably satisfactory to Purchaser, duly executed by all employees each current and former employee, consultant and/or contractor of each Acquired Company or Spin-Off Entity listed on Schedule 1.4(b)(vi) who was involved in the creation of Company IP; (vii) an assignment, in form and substance reasonably satisfactory to Purchaser, duly executed by all consultants PSGSS, transferring to 340B OpCo: (A) PSGSS’s entire right, title and independent contractors interest in and to the Company who have not already signed such agreementsIP, including Xxxxxxx Xxxxxother than any Company IP constituting DMS Intellectual Property (as defined in the Divisional Merger Agreement); and (B) the Contracts set forth in Schedule 1.4(b)(vii); (gviii) the statement referred an assignment, in form and substance reasonably satisfactory to in Section 5.8(a)Purchaser, duly executed by each Spin-Off Entity, transferring to 340B OpCo such Spin-Off Entity’s entire right, title and interest in and to the CompanyRetained Business IT Systems; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (iix) a certificate duly executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Section 8.1, 8.2, 8.4, 8.5, 8.7 and 8.8, in each case (other than Sections 6.18.4 and 8.5) only insofar as such conditions relate to the Acquired Companies as of the relevant times referred to therein, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); (x) a certificate duly executed on behalf of each Seller and containing the representation and warranty of such Seller that the conditions set forth in Section 8.1, 8.2, 8.7 and 8.8, in each case insofar as such conditions relate to such Seller, have been duly satisfied (each, an “Individual Seller Closing Certificate”); (xi) a certificate duly executed by the Blocker and containing the representation and warranty of the Blocker that the conditions set forth in Section 8.1, 8.2, 8.7 and 8.8, in each case insofar as such conditions relate to the Blocker Entities, have been duly satisfied (the “Blocker Closing Certificate”); (xii) a certificate duly executed by the Company and the Sellers’ Representative (the “Closing Consideration Certificate,” which Closing Consideration Certificate may be updated pursuant to Section 1.3(f)), containing the following information (which shall be set forth on an accompanying spreadsheet) and the representation and warranty of the Company and the Sellers’ Representative, on behalf of the Sellers, that the Pro Rata Portion and Special Pro Rata Portion (as provided in the Updated Pro Rata Portion Schedule) of each of the Sellers is true and accurate as of the Closing, that the Closing Indebtedness Amount and the Transaction Expenses are true and correct as of the Closing and that the Closing Cash Amount and the Net Working Capital Amount are the Company’s best good faith estimates of such amounts, each as set forth in the Closing Consideration Certificate: (1) (i) the Closing Indebtedness Amount, (ii) the Transaction Expenses and (iii) the Company’s best good faith estimate of (x) the Closing Cash Amount and (y) the Net Working Capital Amount and the resulting calculation of (A) the Net Working Capital Shortfall Amount, (B) the Net Working Capital Surplus Amount and (C) the Estimated Closing Purchase Price; and (j2) with respect to each Seller: (i) the name and address of record of such Seller, together with the bank account or accounts for payment to such Seller; (ii) the number and class of Purchased Securities held by each such Seller as of immediately prior to the Closing; (iii) such Seller’s Pro Rata Portion and Special Pro Rata Portion as provided in the Updated Pro Rata Portion Schedule; (iv) each such Seller’s Pro Rata Portion of the Estimated Closing Purchase Price; (v) each such Seller’s Special Pro Rata Portion of the General Indemnity Escrow Funds, (vi) each such Seller’s Special Pro Rata Portion of the Special Indemnity Escrow Funds; (vii) each such Seller’s Special Pro Rata Portion of the Sellers’ Representative Fund; and (viii) the total amount of Taxes to be withheld from such Seller’s Pro Rata Portion of the Estimated Closing Purchase Price; (xiii) documentation reasonably satisfactory to Purchaser, in support of the calculation of the amounts set forth in the Closing Consideration Certificate; (xiv) a certificate executed by the Secretary Chief Executive Officer of the Company attaching and certifying the resolutions of the board of managers of the Company approving this Agreement and the transactions contemplated hereby (including the Spin-Off); (xv) a certificate, duly executed by the Chief Executive Officer of the Company’s current Certificate , certifying that true and correct copies of Incorporationall of its Charter Documents are attached thereto and that such Charter Documents are in full force and effect; (xvi) a certificate, Bylaws duly executed by the President of Blocker, certifying that true and correct copies of all Charter Documents of the Blocker Entities are attached thereto and that such Charter Documents are in full force and effect; (xvii) a certificate executed by the Chief Executive Officer (or another equivalent officer) of Blocker attaching and certifying the resolutions of the Company’s board of directors and stockholders managers of Blocker approving and adopting this Agreement, the Merger Agreement and the other transactions contemplated by this Agreementhereby (including the Spin-Off); (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pxviii) written resignations of all officers and directors managers of the Company, 340B OpCo and PHSS and all officers and directors or managers, as applicable, of the Blocker Entities, effective as of the Effective TimeClosing, and the revocation of all signatory rights of all officers and managers of the Company, 340B OpCo and PHSS and all officers and directors or managers, as applicable, of the Blocker Entities; (xix) written acknowledgments in forms that are reasonably acceptable to Purchaser pursuant to which each Acquired Company’s, Spin-Off Entity’s and Blocker Entity’s outside legal counsel and any financial advisor, accountant or other Person who performed services for or on behalf of, or provided advice to, the Acquired Companies, the Spin-Off Entities or the Blocker Entities, or who is otherwise entitled to any compensation from any Acquired Company, Spin-Off Entity or Blocker Entity, in each case, in connection with this Agreement, any of the transactions contemplated by this Agreement or is otherwise owed any amount which is part of the Transaction Expenses, acknowledges: (i) the total amount of unpaid fees, costs and expenses of any nature that is payable in connection with this Agreement, any of the transactions contemplated by this Agreement or otherwise; and (ii) that, upon payment at the Closing of such unpaid amount, such party will have been paid in full and is not (and will not be) owed any other amount by any Acquired Company, any Spin-Off Entity or any Blocker Entity with respect to this Agreement, any of the transactions contemplated by this Agreement or otherwise; (xx) the Signing Date Offer Letters, duly executed by each of the individuals set forth on Schedule 1.4(b)(xx) (such individuals, the “Required Employees”), each of which shall be in full force and effect; (xxi) offer letters (together with any applicable exhibits thereto) in substantially one of the forms attached hereto as Exhibit J (each, a “Closing Date Offer Letter”), duly executed by at least 90% of the total number of Offered Employees listed on Exhibit L, other than the Required Employees, each of which shall be in full force and effect; (xxii) the minute books and other statutory books, records and registers (complete and written up to the Closing) and Charter Documents of the Company, 340B OpCo, PHSS and the Blocker Entities; (xxiii) a duly-executed and completed IRS Form W-9 from each Seller; (xxiv) all Consents identified on Schedule 1.4(b)(xxiv); (xxv) evidence satisfactory to Purchaser that PSG or PHSS shall have sent the notices set forth and described on Schedule 1.4(b)(xxv). (xxvi) evidence satisfactory to Purchaser that all Insider Receivables owed to the Company, 340B OpCo or PHSS and Insider Payables owed by the Company, 340B OpCo or PHSS have been repaid in full; (xxvii) the Spin-Off Agreements, duly executed by the Company, PSG, SpinCo, 340B OpCo, BWA Feeder, Blocker, Blocker Seller and Class A Holder, as applicable and evidence reasonably satisfactory to Purchaser that the transactions contemplated by the Spin-Off Agreements have been Completed; (xxviii) the Transition Services Agreements, duly executed by SpinCo; (xxix) the financial statements required pursuant to Section 6.15; (xxx) evidence reasonably satisfactory to Purchaser that all receivables (A) payable by PSG or any of its Subsidiaries (other than PHSS) to PHSS or (B) by PHSS, 340B OpCo or the Company to PSG or any of its Subsidiaries (other than PHSS) have been satisfied or terminated in full; (xxxi) the Sublease Agreement, duly executed by SpinCo and 340B OpCo and consented to by the Landlord; and (xxxii) evidence reasonably satisfactory to Purchaser of the due exercise of all of the outstanding Class C Options.

Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which which, as applicable, shall be in full force and effect: (a) Affiliate Agreements The Company shall have furnished to the Purchaser a legal opinion dated the Closing Date, in form and substance reasonably acceptable to the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActPurchaser; (b) the Escrow Agreement in a the form an instrument of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing DateUnit Assignment, in the form of Exhibit QD, which legal opinion shall be subject to customary qualificationsduly executed by each Seller; (ic) employment agreements, in the forms provided to the Company prior to the date of this Agreement, duly executed by each of Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxxxx; (d) a certificate duly executed on behalf of the Company by the chief executive officer of the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.18.1, 6.28.2 and 8.4, 6.4 and 6.10 in each case with respect to the Company, have been duly satisfied (the “Company Closing Certificate”); and; (je) a certificate duly executed by each Seller and containing the Secretary representation and warranty of the Seller that the conditions set forth in Sections 8.1 and 8.2, in each case with respect to the Seller, have been duly satisfied (each, a “Seller Closing Certificate”); (f) a certificate (the “Price Certificate”), in form reasonably satisfactory to Purchaser, duly executed on behalf of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions by an officer of the Company’s board of directors and stockholders approving and adopting this Agreement, containing the Merger following information (to be set forth on an accompanying spreadsheet) and the other transactions contemplated by this Agreementrepresentation and warranty of the Company that all of such information is accurate and complete (and in the case of dollar amounts, properly calculated) as of the Closing (together, in each case, with documentation reasonably satisfactory to Purchaser in support of the calculation of the following amounts set forth therein): (A) the Closing Indebtedness Amount; and (B) the Per Unit Cash Amount; (kg) the Certificate written resignations described in Section 5.7 of Merger, executed by each officer and manager of the Company; (lh) the Company Acknowledgments certificates of Payment non-foreign status, in form and Releasesubstance reasonably satisfactory to Purchaser, in accordance with Treasury Regulation § 1.1445-2(b), duly executed by each Seller; (mi) a long-form certificate of good standing from the Secretary of State an IRS Form W-9 duly executed by each of the State of Delaware which is dated within two Business Days prior to Closing with respect to the CompanySellers; (nj) a Certificate evidence reasonably satisfactory to Purchaser of Status the termination and release of Foreign Corporation any and all Encumbrances (other than Permitted Encumbrances) upon the assets or properties of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the ClosingParties; and (ok) certified resolutions or minutes of any Seller which is not a spreadsheet natural person and which are identified in Part 3.1 of the Disclosure Schedule (the “Closing Payment Schedule”if any), duly certified evidencing votes adopted by an officer the shareholders, members, or limited partners, as applicable, of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time such Seller approving this Agreement and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10transactions contemplated hereby. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Employment Agreements in the form of Exhibit I, executed by the individuals identified on Exhibit H; (b) Non-competition Agreements in the form of Exhibit J, executed by the individuals identified on Exhibit H; (c) a Release in the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit EDesignated Shareholders; (d) Noncompetition Agreements the agreement referred to in the form of Exhibit FSection 5.7, executed by the individuals identified on Exhibit Ecertain Company Shareholders; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, agreements (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(f) of the Disclosure Schedule); (gf) the statement referred to in Section 5.8(a), executed by the Company; (hg) a legal opinion of SheppardWhite & Lee XXX, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in a form reasonably acceptable to both Company and Parent; (h) a certificate executed by the form Company's Chief Executive Officer and Chief Financial Officer certifying that each of Exhibit Qthe representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.2, which legal opinion shall be subject to customary qualifications6.3, 6.4 and 6.5 have been duly satisfied (the "Company's Closing Certificate"); (i) a certificate executed by the Company Designated Shareholders and containing the representation and warranty of the Company each Designated Shareholder that each of the representations and warranties set forth in Section 2 (as qualified to knowledge as set forth in each such representation and warranty) is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “Company "Designated Shareholders' Closing Certificate”"); and; (j) a certificate an Escrow Agreement in the form of Exhibit F executed by the Secretary of Designated Shareholders and the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this AgreementShareholders' Agent; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time; (l) Spousal Consents, in the form attached as Exhibit L, executed by the spouses of the Designated Shareholders; and (m) Reseller Agreement in the form of Exhibit G executed by Parent and the Company.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Shareholder Investment Certifications in the form of Exhibit H, each dated as of the date of the Company Shareholders' Meeting or as of an earlier date, executed by each of the Company's shareholders; (b) Affiliate Agreements in the form of Exhibit KI-1, executed by the Persons identified on Exhibit L I-2 and by any other Person who could reasonably be deemed to be an “"affiliate” " of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit OK, executed by the Persons identified on shareholders listed in Exhibit PJ; (d) the waivers referred to in Section 5.9(a), executed by each of the relevant shareholders; (e) the agreement, if any, referred to in Section 5.9(b), executed by Micromuse Plc; (f) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements, agreements (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(f) of the Disclosure Schedule); (g) the statement referred to in Section 5.8(a5.9(a), executed by the Company; (h) an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Parent, executed by X.X. Xxxx Real Estate Investment Trust; (i) a legal opinion of SheppardPiper & Marbury L.L.P., Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the a form of Exhibit Q, which legal opinion shall to be subject to customary qualificationsagreed; (ij) a legal opinion of Piper & Marbury, L.L.P., reasonably satisfactory in form and content to Parent, to the effect that the execution, delivery and performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement do not and will not contravene, conflict with or result in a violation of, or give any Governmental Body the right to exercise any remedy or to obtain any relief under, any Government Contract to which the Company is a party or under which the Company has any rights or obligations; (k) a letter from Ernst & Young LLP, dated as of the Closing Date, regarding concurrence with Parent's management's conclusion regarding the appropriateness of pooling of interests accounting treatment for the Merger under APB Opinion No. 16 if consummated in accordance with this Agreement, in a form customary in scope and substance for letters delivered by independent public accountants in connection with transactions of this type; (l) a letter from Coopers & Xxxxxxx LLP, dated as of the Closing Date, confirming that no transaction entered into by the Company, and no other fact or circumstance relating to the Company, will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with generally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (m) a certificate executed by the Company and containing the representation and warranty of the Company that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 6.2 and 6.10 6.3 have been duly satisfied (the “Company "Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time; and (o) an Escrow Agreement substantially in the form of Exhibit E executed by the Parent and the Company.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KEscrow Agreement, executed by the Persons identified on Exhibit L Escrow Agent and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActSecurityholders’ Representative; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, General Releases executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form officers and directors of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications; (i) a certificate executed by the Company and containing the representation and warranty of the Company that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pc) written resignations of all officers and directors of the Company, effective as of the Effective Time; (d) a payoff letter executed by Silicon Valley Bank in form and substance reasonably satisfactory to Parent evidencing that the Paying Agent has paid any and all outstanding principal and interest, and any other amounts due, under the Silicon Valley Loan Facility; (e) a copy of the Securityholders’ Representative Agreement duly executed by the parties thereto; (f) a certificate signed on behalf of the Company by the President certifying that the conditions set forth in Section 7.1, Section 7.2, Section 7.3 and Section 7.4 have been duly satisfied (the “Company Compliance Certificate”); (g) a legal opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx P.C. in the form of Exhibit H; (h) a certificate signed by the President and Chief Executive Officer of the Company certifying the accuracy in all respects of the Merger Consideration Spreadsheet; and (i) a certificate, dated as of the Closing Date, signed by the Secretary of the Company (i) attaching true and correct copies of the certificate of incorporation and bylaws, and any amendments thereto, of the Company, (ii) certifying that attached thereto are true and correct copies of (A) actions by written consent or resolutions duly approved by the board of directors and (B) the Required Company Stockholder Approval in form of a written consent, which authorize and approve the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, including the Merger, (iii) certifying that there are no proceedings for the dissolution or liquidation of the Company, and (iv) certifying the incumbency, signature and authority of the officers of the Company authorized to execute, deliver and perform this Agreement and all Related Agreements executed or to be executed by the Company.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit KStock Option Cancellation Agreements, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed to be an “affiliate” each of the Company for purposes of the Securities ActConverted Option Holders; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit OE-1, executed by each of the Persons individuals identified on Exhibit PC-2; (fc) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of SheppardSxxxxxxxx Yxxxx Cxxxxxx & Rxxxx, Mullinthe Company’s legal counsel, Xxxxxxx & Hampton LLP (reasonably satisfactory to Parent) in the United States, dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsF; (id) confidential invention and assignment agreements, reasonably satisfactory in form and content to Parent, executed by all employees and former employees of the Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements (including the individuals identified in Part 2.9(f) of the Disclosure Schedule and each of the Retained Employees); (e) an estoppel certificate, dated as of a date not more than five days prior to the Closing Date and satisfactory in form and content to Parent, executed by Sheffield Properties of Illinois, Inc.; (f) a statement (in such form as may be reasonably requested by counsel to Parent) conforming to the requirements of Section 1.897 — 2(h)(1)(i) of the United States Treasury Regulations; (g) written resignations of all directors and officers of the Company, effective as of the Effective Time; (h) a certificate executed by the Company and containing the representation and warranty of the Company that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 Section 6 have been duly satisfied (the “Company Closing Certificate”); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements any bills of sale, endorsements and assignments in form acceptable to Purchaser transferring title to the form of Exhibit K, executed by the Persons identified on Exhibit L and by any other Person who could reasonably be deemed Purchased Assets to be an “affiliate” of the Company for purposes of the Securities ActPurchaser; (b) such other documents evidencing the Escrow Agreement in a transfer of the form of Exhibit MPurchased Assets to Purchaser as are reasonably requested by Purchaser; (c) evidence that any notices or filings required to have been given to or made in connection with the employment offer letters transactions contemplated by this Agreement have been given and made and that all Consents required to have been obtained in substantially connection with such transactions have been obtained; and (d) such other documents as Purchaser may request in good faith for the purpose of (i) evidencing the accuracy of any representation or warranty made by Companies or the Partners, (ii) evidencing the compliance by Companies or the Partners with, or the performance by Companies or the Partners of, any covenant or obligation set forth in this Agreement, (iii) evidencing the satisfaction of any condition set forth in this Section 7, or (iv) otherwise facilitating the consummation or performance of any of the transactions contemplated by this Agreement. (e) Proprietary Information Agreements in the form attached hereto as Exhibit NI-1, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (e) a Release in the form of Exhibit O, executed by the Persons identified on Exhibit PEmployees; (f) confidential invention and assignment agreements, Noncompetition Agreement in the form attached hereto as Exhibit HI-2, executed by all employees each of Xxxxxxx Xxxxxxxxxxx, Xxxx Xxxx and Xxxxxx Xxxxx (collectively, the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx"Partners"); (g) the statement referred to in Section 5.8(a), executed by the Company; (h) a legal opinion of Sheppard, Mullin, Xxxxxxx Xxxxx & Hampton LLP XxXxxxxx dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualifications;J; and (ih) a certificate executed by the Company and containing the representation and warranty of the Company stating that each of the conditions set forth in Sections 6.1, 6.2, 6.4 and 6.10 this Section 5 have been duly satisfied in all material respects (the “Company "Closing Certificate”"); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (p) written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (aA) Affiliate Employment Agreements in the form of Exhibit K, F executed by the Persons identified on Exhibit L each of Xxx Xxxxxx and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities ActXxxxxxx Xxxxx; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit E; (eB) a Release in the form of Exhibit OG, executed by the Persons identified on Exhibit P; (f) confidential invention and assignment agreements, attached hereto as Exhibit H, executed by all employees each of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, including Xxxxxxx Xxxxx; (g) the statement referred to in Section 5.8(a), executed by Key Stockholders of the Company; (hC) a legal opinion of SheppardXxxx, MullinXxxx, Xxxxxxx Xxxx & Hampton Freidenrich, LLP dated as of the Closing Date, in the a form of Exhibit Q, which legal opinion shall be subject reasonably acceptable to customary qualificationsParent; (iD) a certificate executed by the Company and containing the representation and warranty of the Company that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date as if made as of the Closing Date (subject to such exceptions as are necessary for accuracy) and that the conditions set forth in Sections 6.1, 6.2, 6.3 and 6.4 and 6.10 have been duly satisfied (the “"Company Closing Certificate”"); and; (jE) a certificate executed by the Secretary of the Company attaching and certifying as to the Company’s 's current Certificate of Incorporation, Incorporation and Bylaws and the resolutions of the Company’s board 's Board of directors Directors and stockholders approving and adopting this Agreement, the Merger Agreement and the other transactions contemplated by this Agreementrelating thereto; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pF) written resignations of all officers and directors of the Company, effective as of the Effective Time.; (G) the Escrow Agreement substantially in the form of Exhibit E, executed by the Stockholders' Agent and the other parties thereto, and the Escrow Shares shall have been deposited thereunder;

Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit K, executed by the Persons identified on Exhibit L Noncompetition and by any other Person who could reasonably be deemed to be an “affiliate” of the Company for purposes of the Securities Act; (b) the Escrow Agreement in a the form of Exhibit M; (c) the employment offer letters in substantially the form attached hereto as Exhibit N, executed by the individuals identified on Exhibit E; (d) Noncompetition No-Hire Agreements in the form of Exhibit F, executed by the individuals Persons identified on Exhibit E; (eb) a Release in the form of Exhibit OH-2, executed by the Persons Company stockholders identified on Exhibit PH-1; (fc) confidential invention and assignment agreements, attached hereto as Exhibit Hreasonably satisfactory in form and content to Parent, executed by all employees of the Company and by all consultants and independent contractors to the Company who have not already signed such agreements, (including Xxxxxxx Xxxxxthe individuals identified in Part 2.9(f) of the Company Disclosure Schedule); (gd) an estoppel certificate, dated as of a date not more than five days prior to the statement referred Closing Date and reasonably satisfactory in form and content to in Section 5.8(a)Parent, executed by the CompanyDuke-Weeks Realty Corporation; (he) a legal opinion of SheppardXxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP, Mullin, Xxxxxxx & Hampton LLP dated as of the Closing Date, in the form of Exhibit Q, which legal opinion shall be subject to customary qualificationsI; (if) a certificate executed by the Company and containing the representation and warranty legal opinion of Xxxxx Xxxx & Xxxxxxxx, dated as of the Company Closing Date, to the effect that each the Merger will constitute a reorganization within the meaning of Section 368 of the conditions set forth Code (it being understood that, in Sections 6.1rendering such opinion, 6.2, 6.4 and 6.10 have been duly satisfied (such counsel may rely upon the “Company Closing Certificate”tax representation letters referred to in Section 5.5); and (j) a certificate executed by the Secretary of the Company attaching and certifying the Company’s current Certificate of Incorporation, Bylaws and the resolutions of the Company’s board of directors and stockholders approving and adopting this Agreement, the Merger and the other transactions contemplated by this Agreement; (k) the Certificate of Merger, executed by the Company; (l) the Company Acknowledgments of Payment and Release; (m) a long-form certificate of good standing from the Secretary of State of the State of Delaware which is dated within two Business Days prior to Closing with respect to the Company; (n) a Certificate of Status of Foreign Corporation of the Company from the applicable Governmental Authority in each jurisdiction where it is required to be qualified to do business, all of which are dated within five (5) Business Days prior to the Closing; and (o) a spreadsheet (the “Closing Payment Schedule”), duly certified by an officer of the Company setting forth: (i) the Closing Date Stockholder Liability Amount; (ii) the name and address of each of the holders of the Company Capital Stock, Company Warrants and Company Options as of immediately prior to the Effective Time and the number of shares of Company Capital Stock, Company Warrants and Company Options of each class and series held by each such stockholder immediately prior to the Effective Time; (iii) the consideration that each such stockholder is entitled to receive pursuant to Sections 1.5(a), 1.6 and 1.7; and (iv) the amount to be contributed to the Escrow Fund by Parent on behalf of each Escrow Contributor pursuant to Section 1.10. (pg) written resignations of all officers and directors of the Company, effective as of the Effective Time; (h) an Escrow Agreement in the form of Exhibit D, executed by the Company Stockholders' Representative and the Escrow Agent; (i) a certificate signed on behalf of the Company by the Chief Executive Officer of the Company representing and warranting that the conditions set forth in Sections 6.1 and 6.2 have been duly satisfied (the "Company Compliance Certificate"); (j) employment agreements, reasonably satisfactory in form and content to Parent, executed by the Persons identified on Exhibit J; and (k) the Vesting Amendments referred to in Section 4.2(g).