Common use of Agreements and Documents Clause in Contracts

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) the statement referred to in Section 5.16(b), executed by the Company; (b) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (aA) Employment Agreement and Noncompetition Agreement in the form of EXHIBITS H and I, executed respectively, by Xxxxxx X. Xxxxxx; (B) Employment and Noncompetition Agreement in the form of EXHIBIT J, executed by Xxxxx X. Xxxx (C) Release in the form of EXHIBIT K, executed by the Shareholder; (D) confidential information and assignment agreements, reasonably satisfactory in form and content to Parent, executed by those employees listed in PART 6.4(D) of the Disclosure Schedule; (E) the statement referred to in Section 5.16(bSECTION 5.6(A), executed by the Company; (bF) Continuity of Interest Certificates in the form of EXHIBIT G, executed by the Shareholder; (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 114 Executive Park Trust (the "Landlord") and an Amendment to Commercial Lease, dated January 5, 1996, between the Company and the Landlord satisfactory in form and content to Parent; (H) a legal opinion of Xxxxxx, Xxxxxxxx & Branch, Professional Association, dated as of the Closing Date, in the form of EXHIBIT L; (I) a letter from KPMG Peat Marwick Price Waterhouse LLP, dated as of the Closing Date and addressed to Parent and Date, confirming that no transaction entered into by the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, no other fact or circumstance relating to the effect thatCompany, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (cJ) a letter from Xxxxx Xxxxxxxx LLP, dated certificate executed by the Shareholder and containing the representation and warranty of the Shareholder that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of if made on the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 6.2 and 6.8 6.3 have been duly satisfiedsatisfied (the "Shareholder's Closing Certificate"); and (fK) the written resignations of all officers and directors of the CompanyCompany and the Subsidiary, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub 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 statement referred to in Section 5.16(b)form of Exhibit E-2, executed by each individual identified on Exhibit F-2, except to the Companyextent that any such individual has died or has become incapacitated; (b) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (c) a legal opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 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, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx may rely upon tax representation letters including those referred to in Section 5.13); (d) a letter from Coopers & Xxxxxxx L.L.P., dated as of a date no earlier than three (3) days prior to the Closing Date and addressed to Parent, the Company and KPMG Peat Marwick L.L.P., reasonably satisfactory in form and substance to the Company, to the effect that, after reasonable investigation, Coopers & Xxxxxxx L.L.P. is not aware of any fact concerning the Company or any of the Company's shareholders 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; (e) a letter from KPMG Peat Marwick L.L.P., dated as of a date no earlier than three (3) days prior to the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to the Company, to the effect that such firm concurs with Parent's management's conclusion that Parent may account 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; and (f) a certificate executed on behalf of the Company Parent by its Chief Executive Officer an executive officer of Parent, confirming that the conditions set forth in Sections 6.17.1, 6.27.2, 6.4, 6.5, 6.7 7.3 and 6.8 7.6 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an assignment of the statement referred to in Section 5.16(b), Company Units executed by the CompanySeller and a copy of the membership ledger evidencing the assignment of the Company Units in favor of Purchaser; (b) an Escrow Agreement in the form of Exhibit C, executed by the Seller and the Escrow Agent; (c) a letter certificate, dated as of the Closing Date, signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company representing and warranting after reasonable investigation that the conditions set forth in Section 6.1 and Section 6.2 have been duly satisfied (the “Company Compliance Certificate”); (d) the Closing Consideration Certificate; (e) a payoff letter, in form and substance reasonably satisfactory to Purchaser, from KPMG Peat Marwick Heartland to Purchaser, the Seller and the Acquired Companies setting forth the amount necessary to repay in full all of the obligations of Seller and the Acquired Companies owing to Heartland and including a release of all of the Encumbrances existing in favor of Heartland in and to the assets of the Seller and the Acquired Companies (the “Heartland Payoff Letter”), together with termination statements and other documentation evidencing the termination by Heartland of its Encumbrances in and to the properties and assets of the Seller and the Acquired Companies. (f) a legal opinion of Xxxxxx & Xxxxxxx, LLP, in substantially the form attached hereto as Exhibit D; (g) FIRPTA documentation, including FIRPTA Notification Letters, in substantially the form attached hereto as Exhibit E-1 and Exhibit E-2, dated as of the Closing Date and addressed to Parent executed by the Seller and the CompanyAgri-Energy L.P., reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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 SECrespectively; (ch) a letter from Xxxxx Xxxxxxxx LLP, dated as the bills of the Closing Date sale and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to other documents referenced in Section 5.131.6(b); (ei) a certificate executed on behalf evidence that the Second Member Control Agreement of the Company by its Chief Executive Officer confirming dated August 19, 2003 shall have been terminated with no liability to the Company; (j) evidence that all Contracts between the Company and any other Acquired Company or the Seller shall have been terminated with no liability or obligation to the Company; (k) an Amended and Restated Operating Agreement of the Company in the form attached hereto as Exhibit F; (l) Written Action of the Board of Governors of the Company authorizing this Agreement, the Related Agreements and the Contemplated Transactions; (m) Written Action of Seller as sole member of the Company authorizing this Agreement, the Related Agreements and the Contemplated Transactions; (n) documentation necessary, in Purchaser’s sole discretion, to confirm that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfiedSeller owns 100% of the equity interests of the Company; and (fo) such other documents, instruments and certificates as Purchaser may reasonably request no later than five Business Days prior to the written resignations Closing for the purpose of all officers and directors of consummating the Company, effective as of the Effective TimeContemplated Transactions.

Agreements and Documents. Parent and 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 statement referred to in Section 5.16(b)form of Exhibit B, executed by each Person who could reasonably be deemed to be an "affiliate" of the CompanyCompany (as that term is used in Rule 145 under the Securities Act); (b) Reserved; (c) Release in the form of Exhibit C, executed by Lev X. Xxxxxx; (d) Noncompetition Agreement in the form of Exhibit D, executed by Lev X. Xxxxxx; (e) a letter from KPMG Peat Marwick PricewaterhouseCoopers LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent, updating the "comfort" letter referred to in Section 5.13; (f) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date and addressed to the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx Ernst & Young LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick PricewaterhouseCoopers LLP is not aware of any fact concerning the Company Acquired Corporations or any of the Company's shareholders stockholders or affiliates of the Acquired Corporations that could preclude Parent the Company from accounting for the Merger as being a "pooling of interestspoolable entity" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (cg) a letter from Xxxxx Xxxxxxxx Ernst & Young LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx that Ernst & Young LLP is not aware of any fact concerning Parent or any of concurs with Parent's stockholders or affiliates management's conclusion that could preclude Parent from accounting for the Merger may be accounted for as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (dh) a legal opinion of Xxxxxx Godward LLP, Coolxx Xxxward LLP dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Coolxx Godward LLP may rely upon the tax representation letters referred to in Section 5.135.12); (ei) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 6.4 (with respect to the Required Company Vote exercise of dissenters' rights only) and 6.8 6.5 have been duly satisfied; and (fj) the written resignations of all officers and directors from positions as an officer and director of each of the Company, Acquired Corporations effective as of the Effective TimeTime (it being understood that such resignations by officers of the Company whose employment with the Company or Parent following the Effective Time shall be continuing shall not constitute a 45. 52 voluntary or an "Involuntary Termination" under the Change of Control Agreements and shall not effect in any manner any rights of any officer of the Company or any of the Company's obligations under the Change of Control Agreements).

Agreements and Documents. Parent The following documents and Merger Sub agreements shall have received the following agreements been delivered (and documentsexecuted, if applicable) by each of which shall be in full force and effectthe parties to, or issuers of, such documents or agreements, other than Parent: (a) A certificate signed on behalf of the statement referred Company by the chief executive officer or the chief financial officer of the Company to in the effect that Section 5.16(b)7.1, Section 7.2 and Section 7.3 have been satisfied; (b) The Certificate of Merger, executed by the Company; (bc) a letter from KPMG Peat Marwick LLPA registration rights agreement, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance reasonably acceptable to Parent and Xxxxx Xxxxxxxx LLP(the “Registration Rights Agreement”), to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware duly executed by each of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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 SECStockholders; (d) A statement signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company, in the form attached hereto as Exhibit C that the Company is not a legal “United States Real Property Holding Corporation” as defined in Section 897 of the Code; (e) An opinion of Xxxxxx Godward LLP, dated the Parent Financial Advisor addressed to the Board of Directors of Parent as of the Closing Date and addressed to Parentdate hereof, to the effect that the Merger will constitute is fair from a reorganization financial point of view to the shareholders of Parent; (f) An opinion of Duff & Xxxxxx, LLC, in form and substance satisfactory to Parent and its auditors, Ernst & Young, LLP, dated as of a date within two (2) days of the Closing Date (the “Duff & Xxxxxx Opinion”), that the lower end of the range of the aggregate estimated “fair value” (within the meaning of Section 368 SFAS 157) of the Code ARS portfolio is at least 87% of its Aggregate ARS Face Value; (it being understood thatg) Evidence of FINRA approval of the change of control of broker-dealer Subsidiaries of the Company; (h) Employment agreements, in rendering such opiniona form reasonably acceptable to Parent, Xxxxxx Godward LLP may rely upon executed by each Person designated by the tax representation letters referred to in Section 5.13Parent (with the consent of the Company, which consent shall not be unreasonably withheld) (collectively, the “Employment Agreements”); (ei) a certificate executed on behalf Audited consolidated balance sheets of the Company by and its Chief Executive Officer confirming that consolidated Subsidiaries as of September 30, 2008, and the conditions set forth in Sections 6.1related audited consolidated statements of income, 6.2statements of stockholders’ equity and statements of cash flows of the Company and its consolidated Subsidiaries for the fiscal year ending on September 30, 6.42008, 6.5together with the notes thereto and the unqualified reports and opinions of Deloitte & Touche, 6.7 and 6.8 have been duly satisfiedLLP, relating thereto; and (fj) the written resignations of all officers and directors of the CompanyAny other document, effective as of the Effective Timecertificate or instrument reasonably requested by Parent.

Agreements and Documents. Parent and Merger Sub VISTA shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate's Agreements in the statement referred to in Section 5.16(b), form of EXHIBIT D-1 executed by any Person who could reasonably be deemed to be an "affiliate" of GEOSURE for purposes of the CompanySecurities Act; (b) an agreement terminating GEOSURE's obligations under its contract with DP pursuant to the terms thereof, which would not involve a letter from KPMG Peat Marwick LLPcost or charge to GEOSURE in excess of the $200,000 currently specified; (c) to the extent reasonably requested by VISTA, confidential invention and assignment agreements, reasonably satisfactory in form and content to VISTA, executed by all employees of GEOSURE and by all consultants and independent contractors to GEOSURE who have not already signed such agreements (including the individuals identified in Part 2.9(f) of GEOSURE Disclosure Schedule); (d) a legal opinion of Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx, dated as of the Closing Date Date, covering the matters set forth in EXHIBIT E; (e) a letter from Xxxxxx Xxxxxx and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLPP.C., to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any dated as of the Company's shareholders Closing Date, confirming that no transaction entered into by GEOSURE, and no other fact or affiliates that could preclude Parent circumstance relating to GEOSURE, will prevent VISTA from accounting for the Merger Acquisition as a "pooling of interests" in accordance with GAAPgenerally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC16; (cf) a letter from Xxxxx Xxxxxxxx LLP, dated certificate executed by GEOSURE's General Partners (solely in their capacity as such and not in their capacity as a Partner) and containing the representation and warranty that each of the representations and warranties set forth in Section 2 is accurate in all respects as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of if made on the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.18.1, 6.28.2, 6.48.3, 6.58.4, 6.7 8.7 and 6.8 8.8 have been duly satisfiedsatisfied (the "GEOSURE Closing Certificate"); and (fg) The Escrow Agreement in substantially the written resignations of all officers and directors form attached hereto as EXHIBIT G, executed by or on behalf of the Company, effective Partners and the Escrow Agent (as of the Effective Timedefined therein).

Agreements and Documents. Parent and Merger Sub 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 statement referred to in Section 5.16(b)form of Exhibit D, executed by each Person who could reasonably be deemed to be an "affiliate" of the CompanyCompany (as that term is used in Rule 145 under the Securities Act); (b) Continuity of Interest Certificates in the form of Exhibit E, executed by Xxxxx X. Xxxx, Xx., Till X. Xxxxxxxxx and Sequoia Capital Growth Fund; (c) Noncompetition Agreements in the form of Exhibit F, executed by the individuals identified on Exhibit G; (d) a letter from KPMG Peat Marwick LLPErnst & Young llp, dated as of the Closing Date and addressed to Parent Parent, reasonably satisfactory in form and substance to Parent, updating the letter referred to in Section 5.11; (e) a letter from Ernst & Young llp, dated as of the Closing Date and addressed to the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLPCoopers & Xxxxxxx llp, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of Ernst & Young llp concurs with the Company's shareholders or affiliates management's conclusion that could no conditions exist related to the Company that would preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (cf) a letter from Xxxxx Xxxxxxxx LLPCoopers & Xxxxxxx llp, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning that Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting may account for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (dg) a legal opinion of Xxxxxx Godward LLPoutside counsel to Parent, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP such outside counsel may rely upon the Continuity of Interest Certificates and tax representation letters referred to in Section 5.135.10); (eh) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.16.1(a), 6.1(b), 6.1(c), 6.2, 6.4, 6.5, 6.5 and 6.7 and 6.8 have been duly satisfied; and (fi) the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub 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 statement referred to in Section 5.16(b)form previously approved by Parent, executed by each Person who could reasonably be deemed to be an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company; (b) a letter from KPMG Peat Marwick LLPPricewaterhouseCoopers llp, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, updating the letter referred to in Section 5.12; (c) 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 Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers llp, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP PricewaterhouseCoopers llp is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from generally accepted accounting for the Merger as a "pooling of interests" in accordance with GAAPprinciples, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of Xxxxxx Godward LLPletter from PricewaterhouseCoopers llp, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that PricewaterhouseCoopers llp concurs with Parent's management's conclusion that Parent may account for the Merger will constitute as a reorganization within the meaning "pooling of Section 368 interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the Code (it being understood that, in rendering such opinion, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13)SEC; (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 6.7, 6.8, 6.11, 6.12 and 6.8 6.13 have been duly satisfied; and (f) the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: : (aA) the statement referred to in Section 5.16(b), executed by the Company; ; (bB) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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; ; (cC) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; ; (dD) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); ; (eE) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and and (fF) the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Employment Agreements in the statement referred to in Section 5.16(b)form of Exhibit G, executed by the Persons identified on Exhibit F; (b) Noncompetition Agreements in the form of H, executed by the Persons identified on Exhibit F; (c) Release of Claims signed by Xxxxxx X. Xxxxxxx, XX, Xxxxx X. Xxx and Xxxxxx X. Xxxxxxxx, in a form mutually acceptable to Parent and such releasor. (d) 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 Landlord of the Company; (be) a letter from KPMG Peat Marwick LLPlegal opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx PC, dated as of the Closing Date and addressed to Parent and Date, in the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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 SECExhibit K; (cf) a letter from Xxxxx legal opinion of Cooley Godward LLP, or if for any reason Xxxxxx Godward LLP does not render such a legal opinion, a legal opinion of Wilson, Sonsini, Xxxxxxxx LLP& Xxxxxx PC, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to ParentDate, 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, Xxxxxx Godward LLP such counsel may rely upon the tax representation letters referred to in Section 5.136.5); (eg) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and (f) the 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 E, executed by the Company Shareholders' Representative and the Escrow Agent; (i) an opinion from Chase H&Q to the Company that the consideration to be paid to the shareholders of the Company is fair from a financial point of view to such shareholders; (j) confirmations of receipt of information regarding Parent, dated concurrently with the Voting Agreement, from each of the Company's Shareholders who signed the Voting Agreement in the form provided to such shareholders with the Voting Agreement; and (k) 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 7.1 and 7.2 have been duly satisfied (the "Company Compliance Certificate").

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements substantially in the statement referred to in Section 5.16(bform of Exhibit E-2 (each, an "AFFILIATE AGREEMENT"), executed by the Company;Persons identified on Exhibit E-1; -37- 44 (b) Noncompetition Agreements substantially in the form of Exhibit F-2 (each a "NONCOMPETITION AGREEMENT"), executed by the individuals identified on Exhibit F-1; (c) Proprietary information and inventions 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 Company Disclosure Schedule); (d) the statements referred to in Section 6.7, executed by each of the Shareholders; (e) a legal opinion of Venture Law Group, counsel to the Company and the Shareholders, dated as of the Closing Date, substantially in the form of Exhibit G; (f) a letter from KPMG Peat Marwick PricewaterhouseCoopers LLC, 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; (g) a letter from Deloitte & Touche LLP, dated as of the Closing Date and addressed to Parent and Date, confirming that no transaction entered into by the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, no other fact or circumstance relating to the effect thatCompany, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude will prevent Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (ch) a letter from Xxxxx Xxxxxxxx LLP, dated certificate executed by the President and Chief Executive Officer of the Company that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of if made on the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 7 have been duly satisfied; andsatisfied in all material respects (the "COMPANY OFFICER'S CLOSING CERTIFICATE"); (fi) a written opinion from Thomxx Xxxsxx Xxxtners LLC, in a form satisfactory to the Board of Directors of Parent, stating that the issuance of the Merger Shares to the Shareholders is fair to Parent from a financial point of view; (j) A true, correct and complete schedule (the "SCHEDULES OF EXPENSES") of all Company Expenses paid or incurred by or on behalf of the Company or the Shareholders through the Closing Date, accompanied by a certificate signed by the President and Chief Financial Officer of the Company certifying the accuracy and completeness thereof, shall have been delivered by the Company. (k) written resignations of all officers and directors of the Company, effective as of the Effective Time; (l) a counterpart signature page to this Agreement executed by the Shareholders set forth on Schedule 7.5(l); (m) the Escrow Agreement substantially in the form of Exhibit D (the "ESCROW AGREEMENT") executed by the Shareholders' Agent; (n) the Investor Rights Agreement substantially in the form of Exhibit H (the "INVESTOR RIGHTS AGREEMENT") executed by the Shareholders; (o) the consent of the holders of at least a majority of the outstanding "Registrable Securities" (as such term is defined in Section 2.1(b) of the Second Amended and Restated Investor Rights Agreement dated as of August 13, 1998 by and among Parent, Organic and the other shareholders of Parent listed on the signature pages thereto (the "EXISTING REGISTRATION RIGHTS AGREEMENT")) to the Parent's grant of registration rights to the Shareholders pursuant to the Investor Rights Agreement, as required by Section 2.14 of the Existing Registration Rights Agreement (the "CONSENT OF THE EXISTING REGISTRATION RIGHTS HOLDERS"); and (p) If requested by Parent, Stevx Xxxxxxxxxx xxxll have executed an amendment of that certain License Agreement, dated as of February 27, 1997, between Stevx Xxxxxxxxxx xxx the Company or shall have executed a new license agreement, in each case, in form and substance reasonably satisfactory to Parent to ensure that the Company has the absolute, royalty free and perpetual right to use, sublicense, transfer and modify the software program Hit List and any and all derivative works thereof and all modifications, enhancements and upgrades thereto.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) a General Release in the statement referred to in Section 5.16(b)form of Exhibit E, executed by the Companyindividuals and entities listed on Schedule 6.6(a); (b) a letter from KPMG Peat Marwick LLPcertificate executed by the Company containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2 and 6.3 have been duly satisfied (the “Company’s Closing Certificate”); (c) a Certificate of Merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3; (d) the 280G Waivers and evidence reasonably satisfactory to Parent that a Company shareholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and that (x) such requisite 280G Approval was obtained with respect to any Section 280G Payment, or (y) that the 280G Approval was not obtained with respect to any Section 280G Payment and as a consequence, that Section 280G Payment shall not be made or provided, pursuant to the 280G Waivers which were executed by the affected individuals prior to the shareholder vote; (e) the resolutions of Company’s board of directors described in Section 4.6; and (f) written resignations of all directors of the Company effective as of the Effective Time. (g) if the tax representation letters in Section 5.16 are delivered, a legal opinion of Xxxxxx Godward Kronish llp, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to ParentDate, 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, Xxxxxx Godward LLP such counsel may rely upon the such tax representation letters referred to in Section 5.13letters); (eh) a certificate executed on behalf evidence of the Company by its Chief Executive Officer confirming that termination of the conditions set forth Rights Agreement, in Sections 6.1, 6.2, 6.4, 6.5, 6.7 form and 6.8 have been duly satisfied; andsubstance reasonably acceptable to Parent; (fi) such documents, instruments, declarations and/or confirmations executed by the written resignations of Company as in Parent’s opinion shall be required by any applicable Governmental Body for completing all officers applicable approval, registration and directors other procedures in relation to the change in investor of the Company, effective as of Foreign Subsidiaries resulting from the Effective TimeMerger.

Agreements and Documents. Parent and Merger Sub The Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) the statement referred to Affiliate letters as described in Section 5.16(b)5.9 of this Agreement, executed by each Person who is reasonably determined by Parent to be an "affiliate" of Parent (as that term is used in Rule 145 promulgated under the CompanySecurities Act); (b) a letter from KPMG Peat Marwick Xxxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent the Company and Xxxxx Xxxxxxxx Ernst & Young LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick Xxxxxx Xxxxxxxx LLP is not aware of any fact concerning concurs with Company's management's conclusion that the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting be a combining entity in a transaction accounted for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (c) a letter from Xxxxx Xxxxxxxx Ernst & Young LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to the Company and Xxxxxx Xxxxxxxx LLP, regarding such firm's concurrence with Parent, 's management's conclusions as to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware appropriateness of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of Dechert Price & Xxxxxx, dated as of the Closing Date, in the form attached hereto as Exhibit D; provided, however, that such opinion may reflect changes or exceptions that, considered collectively, would not have a material adverse effect on the consummation of the transactions contemplated hereby and have not had and would not reasonably be expected to have a Material Adverse Effect on Parent; and (e) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to ParentDate, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in Code. In rendering such opinion, Xxxxxx Godward LLP such firm may rely upon on such representations, warranties and certificates as it deems reasonable or appropriate under the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Timecircumstances.

Agreements and Documents. Parent and Merger Sub the Company shall have received the following agreements and documents, each of which shall be in full force and effect: : Affiliate Agreements in the form previously approved by Parent, executed by each Person who could reasonably be deemed to be an "affiliate" (aas that term is used in Rule 145 under the Securities Act) of the statement Company; a letter from PricewaterhouseCoopers llp, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, updating the letter referred to in Section 5.16(b), executed by the Company; (b) 5.12; a letter from KPMG Peat Marwick LLPPricewaterhouseCoopers llp, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers llp, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP PricewaterhouseCoopers llp is not aware of any fact concerning the Company or any of the Company's shareholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (c) ; a letter from Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers llp, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of that PricewaterhouseCoopers llp concurs with Parent's stockholders or affiliates management's conclusion that could preclude Parent from accounting may account for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) ; a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 6.7, 6.8, 6.11, 6.12 and 6.8 6.13 have been duly satisfied; and (f) and the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub 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 statement referred to in Section 5.16(b)form of Exhibit C, executed by each Person who could reasonably be deemed to be an "affiliate" of the CompanyCompany (as that term is used in Rule 145 under the Securities Act); (b) Noncompetition Agreements in the form of Exhibit D, executed by Jonaxxxx X. Xxxxxxx xxx Laurxxxx X. Xxxxxxxx; (c) Releases in the form of Exhibit E, executed by Jonaxxxx X. Xxxxxxx, Xxurxxxx X. Xxxxxxxx, Xxchxxx Xxxxx, Xxifxxx Xxxx, Xxanx Xxxxxx and Richxxx Xxxxxxxxx; (d) a letter from KPMG Peat Marwick LLPArthxx Xxxexxxx XXX, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent, updating the "comfort" letter referred to in Section 5.12; (e) a letter from Arthxx Xxxexxxx XXX, dated as of the Closing Date and addressed to the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx PricewaterhouseCoopers LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP Arthxx Xxxexxxx XXX is not aware of any fact concerning the Company Acquired Corporations or any of the Company's shareholders stockholders or affiliates of the Acquired Corporations that could preclude Parent the Company from accounting for the Merger as being a "pooling of interestspoolable entity" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (cf) a letter from Xxxxx Xxxxxxxx PricewaterhouseCoopers LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Time.to

Agreements and Documents. Parent and Merger Sub 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 statement referred to in Section 5.16(b)form of Exhibit D, executed by each Person who could reasonably be deemed to be an "affiliate" (as that term is defined in Rule 145 under the Securities Act) of the Company; (b) Noncompetition Agreements in the form of Exhibit G, executed by the individuals identified on Exhibit F; (c) a letter from KPMG Peat Marwick PricewaterhouseCoopers LLP, dated as of the Closing Date and addressed to Parent and the CompanyParent, reasonably satisfactory in form and substance to Parent Parent, updating the letter referred to in Section 5.13; (d) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date (which may contain customary qualifications and Xxxxx Xxxxxxxx LLPassumptions), to the effect that, after reasonable investigation, KPMG Peat Marwick that PricewaterhouseCoopers LLP is not aware of any fact concerning concurs with the Company or any of management's conclusion that no condition exists related to the Company's shareholders or affiliates that could Company which would preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted 42 accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (ce) a letter from Xxxxx Xxxxxxxx PricewaterhouseCoopers LLP, dated as of the Closing Date (which may contain customary qualifications and assumptions), and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx that PricewaterhouseCoopers LLP is not aware of any fact concerning concurs with Parent or any of Parentmanagement's stockholders or affiliates conclusion that could preclude Parent from accounting may account for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (df) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, that (i) in rendering such opinion, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.135.12, and (ii) if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed to be satisfied if Fenwick & West LLP renders such opinion to Parent); (eg) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.46.4 (as it relates to the Required Company Shareholder Vote), 6.5, 6.7 6.6(a), 6.7, 6.8, 6.11, 6.12, and 6.8 6.13 have been duly satisfied; and (fh) the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) executed copies of (i) the statement referred to in Section 5.16(b), executed by the Company; (b) a letter from KPMG Peat Marwick LLPlegal opinion of GCWF, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, rendered to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward LLP such counsel may rely upon the tax representation letters reasonably acceptable to CG 48. and GCWF) and (ii) the legal opinion of CG as to certain other matters in the form attached as Exhibit H hereto; the opinion referred to in clause (i) of this Section 5.13)6.5(a) shall not be waivable unless approval of the opposing party is obtained with appropriate disclosure and in rendering such opinions counsel may rely upon reasonable representations and certificates of Parent, Merger Sub and Company; (eb) an Escrow Agreement, executed by the Company, the Shareholder Representative and the Escrow Agent; (c) a certificate executed signed on behalf of the Company by its the Chief Executive Officer confirming and the Chief Financial Officer (or other duly elected or appointed executive officer of the Company) representing and warranting that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 Section 6.1 and 6.8 Section 6.2 have been duly satisfied; (d) a resignation from each director and officer of the Company effective as of the Closing from each office or directorship held by such person in any Acquired Entity and a waiver from each of them of any rights to accelerated vesting of shares of capital stock of the Company due to constructive termination of his or her employment with the Company; (e) evidence reasonably satisfactory to Parent of the termination of (i) the Second Restated Investors' Rights Agreement by and among the Company and certain of its investors and (ii) any agreements regarding maintaining status as a "small business concern" within the meaning of the Small Business Investment Act of 1958, as amended; and (f) the written resignations of all officers and directors a copy of the Company, effective as Restated Articles certified by the Secretary of State of the Effective TimeState of California as filed therewith.

Agreements and Documents. Parent and Merger Sub the Company, as provided herein, shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate's Agreements in the statement referred to in Section 5.16(b), form of Exhibit D-1 executed by any Person who could reasonably be deemed to be an "affiliate" of the CompanyCompany for purposes of the Securities Act; (b) a letter from KPMG Peat Marwick LLPRelease in the form of Exhibit G, dated as of executed by the Closing Date Designated Stockholders; (c) to the extent reasonably requested by Parent, confidential invention and addressed to Parent and the Companyassignment agreements, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed content to Parent, reasonably satisfactory in form executed by all employees of the Company and substance to Parent, by all consultants and independent contractors to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is Company who have not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for already signed such agreements (including the Merger as a "pooling of interests" individuals identified in accordance with GAAP, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies Part 2.9(f) of the SECCompany Disclosure Schedule); (d) a legal opinion of Xxxxxx Godward LLPJenkens & Xxxxxxxxx, P.C., dated as of the Closing Date and addressed to ParentDate, in the form of Exhibit H; (e) a legal opinion of Xxxxxx Godward 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, in rendering such opinion, Xxxxxx Godward LLP such counsel may rely upon the tax representation letters referred to in Section 5.137.9); (ef) a letter from Xxxxxx Xxxxxxxx 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; (g) a certificate executed on behalf of by the Company by its Company's Chief Executive Officer confirming (solely in his capacity as such and not in his capacity as a Designated Stockholder) and containing the representation and warranty 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 6.18.1, 6.28.2, 6.4, 6.5, 6.7 8.3 and 6.8 8.4 have been duly satisfiedsatisfied (the "Company Closing Certificate"); and (fh) the if requested by Parent, written resignations of all officers and directors of the CompanyAcquired Corporations and the Company ESOP Trustees and 401(k) Trustees, effective as of the Effective Time, except as otherwise provided herein or otherwise agreed by Parent and the Company.

Agreements and Documents. Parent and Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements substantially in the statement referred to in Section 5.16(b)form of Exhibit E-1, executed by the CompanyPersons identified on Exhibit E-2 and by any other Person who Parent reasonably deems to be an "affiliate" of the Company for purposes of the Securities Act; (b) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to ParentDate, to the effect that the Merger will should constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, Xxxxxx Godward LLP such counsel may rely upon the tax representation letters referred letters) it being understood that the delivery of such opinion may not be waived without appropriate disclosure to in Section 5.13)counsel for the Company; (ec) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Time.; (d) an Escrow Agreement substantially in the form of Exhibit B-1, executed by the Company Shareholders' Representative and the Escrow Agent; (e) a certificate signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company representing and warranting after reasonable investigation that the conditions set forth in Section 6.1 and Section 6.2 have been duly satisfied (the "Company Compliance Certificate"); (f) a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company certifying the Fully Diluted Company Share Amount; (g) a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company certifying the amount of cash of the Company as of the Effective Time and the aggregate principal amount outstanding under Secured Notes as of the Effective Time; (h) a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company certifying to the best of their knowledge the amount of Working Capital computed in accordance with the terms of this Agreement as of the date of the Closing Balance Sheet; and (i) a legal opinion of Xxxx Xxxx, counsel to the Company, in the form of Exhibit L.

Agreements and Documents. Parent and Merger Sub shall have received the The following agreements and documentsdocuments shall have been delivered to Parent, each of which and shall be in full force and effect: (a) a certificate, executed on behalf of the statement referred to Company by an executive officer of the Company, confirming that the conditions set forth in Section 5.16(b)Sections 7.1, 7.2, 7.3 and 7.4 have been duly satisfied; (b) Affiliate Agreements in the form of Exhibit C, executed by each Person who could reasonably be deemed to be an "affiliate" (as that term is used in Rule 145 under the Securities Act) of the Company; (bc) a letter from KPMG Peat Marwick LLPthe Company's independent accountant, dated as of the Closing Date and addressed to Parent Parent, the Company and the CompanyPricewaterhouseCoopers, in its capacity as Parent's independent accountant, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP Ernst & Young is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (d) a legal opinion of Xxxxxx Godward LLPletter from PricewaterhouseCoopers, in its capacity as Parent's independent accountant, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect PricewaterhouseCoopers, concurs with Parent's management conclusion that Parent may account for the Merger will constitute as a reorganization within the meaning "pooling of Section 368 interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the Code (it being understood that, in rendering such opinion, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.13); (e) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfiedSEC; and (fe) the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent and 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 statement referred to in Section 5.16(b)form of Exhibit C-1, executed by the CompanyPersons identified on Exhibit C-2 and by any other Person who Parent reasonably deems to be an "affiliate" of the Company for purposes of the Securities Act; (b) a letter from KPMG Peat Marwick LLP, dated as of the Closing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick LLP is not aware of any fact concerning the Company or any of the Company's shareholders 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; (c) a letter from Xxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning Parent or any of Parent's 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; (d) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date and addressed to ParentDate, 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, Xxxxxx Godward LLP such counsel may rely upon the tax representation letters referred to in Section 5.135.3);. (ec) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5, 6.7 and 6.8 have been duly satisfied; and (f) the written resignations of all officers and directors of the Company, effective as of the Effective Time, and a General Release in the form of Exhibit E-1 shall have been executed and delivered to Parent by each director and officer of the Company; (d) an Escrow Agreement in the form of Exhibit B, executed by the Company Shareholders' Representative and the Escrow Agent; (e) a certificate, dated as of the Closing Date, signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company representing and warranting after reasonable investigation that the conditions set forth in Section 6.1 and Section 6.2 have been duly satisfied (the "Company Compliance Certificate"); (f) a legal opinion of Xxxxx Xxxxxx & Xxxxxx (acquisition counsel to the Company) and Xxxxxxx Xxxxxxx, corporate and securities counsel to the Company, in the form of Exhibit G; (g) a consolidated balance sheet of the Company dated as of the Closing Date (the "Closing Balance Sheet"), which presents fairly, in all material respects, the financial condition of the Company on the Closing Date in conformity with GAAP, and reflects no indebtedness, including guarantees, other than trade payables incurred in the Ordinary Course of Business (provided that during the Pre-Closing Period the Company continues to pay its trade and other payables in accordance with its payment practices prior to the date of this Agreement) and other than short-term indebtedness for borrowed money drawn from the Company's existing revolving line of credit for the sole purpose of funding working capital requirements in proportion to accounts receivable growth in excess of historical growth rate for the Company's accounts receivable; (h) a certificate executed by the Chief Financial Officer of the Company certifying the Fully Diluted Company Share Amount and the Company Common Share Amount; and (i) a certificate, dated as of the Closing Date, signed by the Secretary of the Company (i) attaching copies of the Articles of Incorporation and Bylaws, and any amendments thereto, of each of the Acquired Corporations, (ii) attaching a good standing certificate of each of the Acquired Corporations, duly certified by the applicable Governmental Authority of the state of organization of the applicable Acquired Corporation, (iii) certifying that attached thereto are true and correct copies of action by written consent or resolutions duly adopted by the Board of Directors and shareholders of the Company which authorize and approve the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby, (iv) certifying that there are no proceedings for the dissolution or liquidation of any of the Acquired Corporations and (v) 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 executed by the Company.

Agreements and Documents. Parent and Merger Sub 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 statement referred to in Section 5.16(b)form of Exhibit C, executed by each Person who could reasonably be deemed to be an "affiliate" of the CompanyCompany (as that term is used in Rule 145 under the Securities Act ), which Affiliate Agreement shall also contain customary continuity of interest representations; (b) Accepted employment letters in the form of Exhibit E, executed by the individuals identified on Exhibit F; and none of the individuals identified on Exhibit F shall have expressed an intention to terminate his employment with the Company or to decline to accept employment with Parent; (c) a letter from KPMG Peat Marwick Ernst & Young LLP, dated as of the Closing Date and addressed to Parent Parent, the Company and the CompanyPrice Waterhouse LLP, reasonably satisfactory in form and substance to Parent and Xxxxx Xxxxxxxx Price Waterhouse LLP, to the effect that, after reasonable investigation, KPMG Peat Marwick Ernst & Young LLP is not aware of any fact concerning the Company or any of the Company's shareholders stockholders or affiliates that could preclude Parent from accounting for the Merger as a "pooling of interests" in 49 56 accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (cd) a letter from Xxxxx Xxxxxxxx Price Waterhouse LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that, after reasonable investigation, Xxxxx Xxxxxxxx LLP is not aware of any fact concerning that Parent or any of Parent's stockholders or affiliates that could preclude Parent from accounting may account for the Merger as a "pooling of interests" in accordance with GAAPgenerally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC; (de) a legal opinion of Xxxxxx Godward Coolxx Xxxward LLP, dated as of the Closing Date and addressed to Parent, 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, Xxxxxx Godward Coolxx Xxxward LLP may rely upon the continuity of interest representations and tax representation letters referred to in Section 5.13this Agreement), provided, however, that if Coolxx Xxxward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed to be satisfied if counsel to the Company renders such opinion to Parent; (ef) a certificate executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.46.4 (as to the Required Company Stockholder Vote only), 6.56.6, 6.7 6.8, and 6.8 6.9 have been duly satisfied; and (fg) the written resignations of all officers and directors of the Company, effective as of the Effective Time; provided further that (i) the written resignations of Philxxx Xxxxxx, Xxry Xxxx, xxd Henkx Xxxxxx (xxe "Executives") shall also contain provisions providing for the release by the Executives of the Company's obligations under the Executives' existing employment agreements with the Company and (ii) a voluntary termination by the Executives of such employment agreements.