Common use of Agreements and Documents Clause in Contracts

Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Date; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date; (c) 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 5.11); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, renders such opinion to Parent. (d) 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 and 6.7, have been duly satisfied; and (e) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx Charxxx X. Xxxxxxxxx, and xxd such agreement shall become effective as of the Closing Date; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx Paul X. Xxxxxxxx and xxx such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Dr. Xxxxxxxx in xx substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Dr. Xxxxxxxx with xxxh an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date; (c) 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 tax representation letters referred to in Section 5.11); PROVIDEDprovided, HOWEVERhowever, that if Xxxxxx Godward Coolxx Xxxward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx Lathxx & XxxxxxxXatkxxx, counsel xxunsel to the Company, renders such opinion to Parent. (d) 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 and 6.7, have been duly satisfied; and (e) except as set forth on Exhibit B, the 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) an employment agreement in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx Charxxx X. Xxxxxxxxx, and xxd such agreement shall become effective as of the Closing Date; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx Paul X. Xxxxxxxx and xxx such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Dr. Xxxxxxxx in xx substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Dr. Xxxxxxxx with xxxh an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date; (c) a legal opinion of Xxxxxx Godward LLP dated Lathxx & Xatkxxx, xxted 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 may Lathxx & Xatkxxx xxx rely upon the tax representation letters referred to in Section 5.11); PROVIDEDprovided, HOWEVERhowever, that if Xxxxxx Godward LLP does Lathxx & Xatkxxx xxxs not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & XxxxxxxCoolxx Xxxward LLP, counsel to the CompanyParent, renders such opinion to Parent.the Company; and (d) 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, 6.47.4, 6.5 7.5, 7.7 and 6.7, 7.8 and 7.9 have been duly satisfied; and (e) except as set forth on Exhibit B, the 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) an employment agreement in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Date; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date; (c) a legal opinion of Xxxxxx Godward LLP & Xxxxxxx, 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 & Xxxxxxx may rely upon the tax representation letters referred to in Section 5.11); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP & Xxxxxxx does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & XxxxxxxGodward LLP, counsel to the CompanyParent, renders such opinion to Parent.the Company; and (d) 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, 6.47.4, 6.5 7.5, 7.7 and 6.7, 7.8 and 7.9 have been duly satisfied; and (e) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement Employment Agreements in substantially the forms attached hereto as Exhibits X-0, X-0 and D-3, executed by Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, and Xxxxx Xxxxxxxxx, respectively; (b) Affiliate Agreements in the form attached hereto as Exhibit H which shall have been B, executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxxthe Persons identified on Exhibit C, each other person who, after the date hereof becomes an executive officer, director or beneficial holder of more than 10% of the outstanding capital stock of the Company, and such agreement shall become effective each person who is otherwise identified by the SEC as an "affiliate" within the meaning of Rule 144(a) (1) promulgated under the Securities Act; (c) a letter from Ernst & Young LLP, dated as of the Closing DateDate and addressed to Parent, reasonably satisfactory in form and substance to Parent, updating the letter referred to in Section 5.9; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date; (cd) 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 5.115.8); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, renders such opinion to Parent.; (de) a certificate (the "Closing Certificate") executed on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.26.3, 6.4, 6.5 6.6, and 6.7, 6.7 have been duly satisfied; and (ef) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective Time. (g) a letter from Xxxxxx Xxxxxxxx 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 failure to deliver such letter shall not excuse Parent and Merger Sub from performing their obligations under this Agreement if such failure does not result from any breach of the representations, warranties or covenants made by the Company in this Agreement; and (h) a letter from Ernst & Young LLP, dated as of the Closing Date, confirming that no transaction entered into by the Acquired Corporations, and no other fact or circumstance relating to 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; provided, however, that the failure to deliver such letter shall not excuse Parent and Merger Sub from performing their obligations under this Agreement if such failure does not result from any breach of the representations, warranties or covenants made by the Company in this Agreement.

Agreements and Documents. Parent shall The Company will have received the following agreements and documents, each of which shall will be in full force and effect: (a) an employment agreement in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Date; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date; (c) 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 5.11); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, renders such opinion to Parent. (d) a certificate executed on behalf of the Company WYOI by its Chief Executive Officer confirming that the conditions set forth in Sections 6.17.1, 6.27.2, 6.47.3, 6.5 7.5, 7.6 and 6.7, 7.7 have been duly satisfied; (b) resolutions of the board of directors of WYOI, certified by the secretary of WYOI, approving the transactions contemplated by this Agreement, including the issuance of the WYOI Shares and the matters referred to in Sections 5.8 and 5.9 of this Agreement; (c) certificates representing the WYOI Shares registered in the names of the Company Shareholders; (d) a certified list of the record holders of WYOI Common Stock as of the most recent practicable date evidencing all of the shares of WYOI Common Stock issued and outstanding; (e) a certificate of good standing of WYOI from the State of Wyoming and any other states where WYOI is qualified to do business, as of the most recent practicable date; (f) the agreement of Xx. Xxxx Xxxxxx and Xxxxxxx XxXxxxxxx, in form and substance acceptable to the Company, to indemnify the Company against any claim, loss or expense resulting from or arising under a breach of the representations, warranties or covenants of WYOI set forth in this Agreement, other than covenants that by the express terms of this Agreement are intended to be carried out after the Closing; provided, however, that such indemnification obligation shall only extend to a breach caused by those events that occurred while Xx. Xxxxxx and Xx. XxXxxxxxx were officers of WYOI, or, for those events that may have occurred prior to such time, for which Xx. Xxxxxx and/or Xx. XxXxxxxxx had actual knowledge or reasonably should have had such knowledge; and (eg) except as set forth on Exhibit B, a legal opinion from a law firm of recognized standing in form and content reasonably acceptable to the written resignations of all officers Company and directors of its counsel relating to the Company, effective as of the Effective Timetransactions 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) an employment agreement Affiliate Agreements in substantially the form attached hereto of EXHIBIT C, executed by each Person who could reasonably be deemed to be an “affiliate” (as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as that term is used in Rule 145 under the Securities Act) of the Closing DateCompany; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective letter from PricewaterhouseCoopers LLP, dated as of the Closing DateDate and addressed to Parent, reasonably satisfactory in form and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx substance to Parent, updating the letter referred to in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateSection 5.11; (c) a legal opinion of Xxxxxx Godward LLP Kronish 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 Cooley Godward Kronish LLP may rely upon the tax representation letters referred to in Section 5.11); PROVIDED5.10, HOWEVER, that and (ii) if Xxxxxx Cooley Godward Kronish LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed to be satisfied if Xxxxxx Xxxxxxxx & XxxxxxxMarkiles, counsel to the Company, LLP renders such opinion to Parent.); (d) a certificate executed on behalf of the Company by its Chief Executive Officer and Chief Financial Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.46.4(a), 6.5 and 6.5, 6.6(a), 6.7, 6.8, 6.11, 6.12, and 6.13 have been duly satisfied (e) each of the consents to assignment identified on Schedule 6.5 to the Disclosure Schedule; and (ef) except as set forth on Exhibit B, the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement agreements, in substantially form and substance reasonably satisfactory to Parent, terminating or amending the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Dateagreements identified on Schedule ý5.6 in accordance with Section 5.6; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date; (c) 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 5.11); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, renders such opinion to Parent. (d) a certificate duly executed on behalf of the Company by its Chief Executive Officer confirming the chief executive officer of the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.17.1, 6.2, 6.4, 6.5 7.2 and 6.7, 7.4 have been duly satisfied; andsatisfied (the “Company Closing Certificate”); (c) the Certificate of Merger, duly executed by the Company; (d) the Sale and Merger Consideration Spreadsheet; (e) except as set forth on Exhibit B, the written resignations of all officers and directors of the Companyitems required to be delivered pursuant to Section 1.10(a); (f) the Significant Owner Agreement executed by Xxxxx Xxxxxxx (“Xxxxxxx”) shall, effective assuming due execution and delivery of Parent’s signature thereto and no repudiation by Parent thereof, be in full force and effect as of the Effective Time; (i) the Employment Documents executed by Xxxxxxx as of the date of this Agreement shall, assuming due execution and delivery of Parent’s signature thereto and no repudiation by Parent thereof, be in full force and effect as of the Effective Time and (ii) Xxxxxxx shall not have died or have suffered a Disability; (h) the Management Deferral Agreements executed by Xxxxxxx shall, assuming due execution and delivery of Parent’s signature thereto and no repudiation thereof, be in full force and effect as of the Effective Time; (i) the Escrow Agreement, duly executed by the Securityholders’ Agent; (j) the FIRPTA Certificate executed by the Company and the FIRPTA Statement executed by each Blocker; (k) the Pay Off Letters, duly executed by each of the creditors under the Contracts identified on Schedule 5.10; and (l) certificates of good standing (or equivalents thereof) for each of the Acquired Companies from the Secretary of State of the State of 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) an employment agreement Employment Agreements in substantially the form attached hereto as of Exhibit H which shall have been F hereto, executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Dateindividuals identified on Exhibit G hereto; (b) a separation and consulting agreement Noncompetition Agreements in substantially the form attached hereto as of Exhibit I-1 which shall have been H hereto, executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as individuals identified on Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateG hereto; (c) a FIRPTA Statement in the form of Exhibit I hereto, executed by the Company; (d) Shareholder Representation Letters substantially in the form of Exhibit D-1 or D-2 hereto, as applicable, executed by each of the Merger Shareholders and by each holder of options and warrants to purchase shares of Company Common Stock; (e) a Registration Rights Agreement in the form of Exhibit J hereto, executed by the Shareholders' Agent on behalf of each of the Merger Shareholders; (f) an Escrow Agreement substantially in the form of Exhibit C hereto, executed by each of the Merger Shareholders and the Escrow Agent; (g) a legal opinion of Xxxxxx Godward LLP 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 llp may rely upon the tax representation letters referred to in Section 5.115.9); PROVIDEDprovided, HOWEVERhowever, that if Xxxxxx Godward LLP llp does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & XxxxxxxXxxxxxxx llp, counsel to the Company, renders such opinion to Parent.; (dh) a certificate executed on behalf by the Company and containing the representation and warranty of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.46.3, 6.5 6.4 and 6.7, 6.11 have been duly satisfied; andsatisfied (the "Company's Closing Certificate"); (ei) except as set forth on Exhibit B, 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 and the articles of merger executed by the Company to be filed in the Department of State of the Commonwealth of Pennsylvania in accordance with Section 1.3; (j) written resignations of all directors and officers and directors of the Company, effective as of the Closing Date; (k) written acknowledgements from the Company's Counsel and the Company's Accountants setting forth the total amount of fees, costs and expenses payable to the Company's Counsel and the Company's Accountants, respectively, in connection with all services provided by such advisors with respect to the transactions contemplated by this Agreement; (l) 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 articles of incorporation and bylaws or by applicable law; and (m) a Setoff Escrow Agreement substantially in the form of Exhibit L hereto, executed by each of the Merger Shareholders and the Escrow Agent.

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) an employment agreement Affiliate Agreements in substantially the form attached hereto of Exhibit C, executed by each Person who could reasonably be deemed to be an "affiliate" (as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as that term is used in Rule 145 under the Securities Act) of the Closing DateCompany; (b) a separation and consulting agreement Stock Transfer Restriction Agreements in substantially the form attached hereto as of Exhibit I-1 which shall have been E, executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective each Person identified on Schedule 5.16; (c) a letter from PricewaterhouseCoopers LLP, dated as of the Closing DateDate and addressed to Parent, reasonably satisfactory in form and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx substance to Parent, updating the letter referred to in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateSection 5.12; (cd) a legal opinion of Xxxxxx Godward LLP 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 (and confirmations thereof) referred to in Section 5.11); PROVIDED5.11 and customary assumptions, HOWEVER, that 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 Xxxxxx & Xxxxxxx, counsel to the Company, Xxxxxxx Procter LLP renders such opinion to Parent.); (de) a certificate executed on behalf of the Company by its Chief Executive Officer and Chief Financial Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.46.4(a), 6.5 6.5, 6.6(a), 6.7 and 6.7, 6.10 have been duly satisfied; and (ef) except as set forth on Exhibit B, the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent The Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement Affiliate Agreements in substantially the form attached hereto of Exhibit D, executed by each Person who could reasonably be deemed to be an "affiliate" of Parent (as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of that term is used in Rule 145 under the Closing DateSecurities Act); (b) a separation and consulting agreement Employment Agreements in substantially the form attached hereto as of Exhibit I-1 which shall have been I, executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior respect to the Closing Dateindividuals identified on Exhibit J; (c) a legal opinion Noncompetition Agreements in the form of Xxxxxx Godward LLP Exhibit K, executed by Parent with respect to the individuals identified on Exhibit J; (d) separate letters from Ernst & Young LLP, dated as of the Closing Date and addressed to ParentParent and the Company, respectively, to the effect that Ernst & Young LLP concurs with Parent management's conclusions as to the appropriateness of "pooling of interests" accounting treatment for the Merger; (e) a legal opinion of Coolxx Xxxward LLP, dated as of the Closing Date, in the form of Exhibit M; (f) a legal opinion of Pillsbury Madison & Sutro 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 Pillsbury Madison & Sutro LLP may rely upon the Continuity of Interest Certificates and tax representation letters referred to in Section 5.11); PROVIDEDprovided, HOWEVERhowever, that if Xxxxxx Godward LLP such counsel does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed to be satisfied if Xxxxxx & Xxxxxxx, counsel with respect to the Company, Company if Coolxx Xxxward LLP renders such opinion to Parent. (d) 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 and 6.7, have been duly satisfiedCompany; and (e) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement Employment offer letters, accepted and countersigned by: (i) at least fifteen (15) of the individuals identified in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by that certain written list that Parent and Xxxxxxx X. Xxxxxxxxxthe Company have developed and agreed to for purposes of this Section 6.6(a), and such agreement shall become effective as (ii) three (3) of the Closing Datefollowing individuals: Xxxxxx Xxxxxx; Xxxx Xxxxxxxx; Xxxxxx XxXxxxxxxx; and Xxxxx Xxxxxxx; (b) a separation and consulting agreement Noncompetition Agreements in substantially the form attached hereto as of Exhibit I-1 which shall have been D, executed by each of the individuals identified in Section 6.6(a)(ii) who accepts and delivered countersigns the employment offer letter contemplated by Parent and Xxxx X. such Section; (c) a General Release in the form of Exhibit E, executed by each of the Major Stockholders; (d) a legal opinion of Xxxxxx Xxxxxxx Xxxxxxxx and such agreement shall become effective & Xxxxxx, P.C. ("Xxxxxx Xxxxxxx"), dated as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx covering such matters with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior respect to the Closing DateAcquired Companies as Parent may reasonably request (and is customary in a transaction such as the Merger); (ce) a legal opinion of Xxxxxx Godward LLP Cooley Godward, 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 368 368(a) of the Code (it being understood thatCode; provided, in rendering such opinion, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.11); PROVIDED, HOWEVERhowever, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless will be deemed satisfied if Xxxxxx & XxxxxxxXxxxxxx shall render such opinion to Parent in form reasonably acceptable to Parent. In rendering the opinion contemplated by this Section, counsel to may 37. rely upon reasonable representations and certificates of Parent, Merger Sub and the Company, renders such opinion to Parent.including the tax representation letters described in Section 5.14; (df) a certificate executed on behalf by the Company containing the representation and warranty of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.4, 6.5 and 6.7, Section 6 have been duly satisfiedsatisfied (the "Company's Closing Certificate"); (g) 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; and (eh) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective Time.

Agreements and Documents. Parent The Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement Affiliate Agreements in substantially the form attached hereto as of Exhibit H which shall have been D, executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as each Person who could reasonably be deemed to be an "affiliate" of the Closing DateCompany (as that term is used in Rule 145 under the Securities Act); (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective legal opinion of Pillsbury Madison & Sutro LLP dated as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as of Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateJ; (c) a legal opinion of Xxxxxx Cooley Godward LLP dated as of the Closing Date and addressed to Parentthe Company, 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 5.116.9); PROVIDED, HOWEVER, that 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 Xxxxxx & Xxxxxxx, counsel to the Company, Parent renders such opinion to Parent.the Company. In rendering such opinion, such firm may rely on the tax representation letters referred to in Section 6.9; (d) a certificate executed on behalf of the Company Parent by its Chief Executive Officer confirming that the conditions set forth in Sections 6.18.1, 6.28.2, 6.48.4, 6.5 8.6, 8.7 (insofar as it relates to the Consents identified in Part 8.7 of the Parent Disclosure Schedule), 8.9, 8.10 and 6.7, 8.18 have been duly satisfied; and; (e) except as set forth on Exhibit B, the written resignations of all officers and directors of Parent (except for the Companyresignation of Xxxxx Xxxxxxx as a director of Parent), effective as of the Effective Time; (f) evidence of Parent's compliance with Section 6.10(b); and (g) a Registration and Stockholder Rights Agreement in the form of Exhibit G, executed by Parent and ABB.

Agreements and Documents. (a) Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (ai) an employment agreement the Escrow Agreement, in substantially the form attached hereto as of Exhibit H which shall have been C, executed by the Shareholders' Representative and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing DateEscrow Agent; (bii) a separation and consulting agreement the Holder Agreement, in substantially the form attached hereto as of Exhibit I-1 which shall have been executed D, relating to registration rights and delivered indemnification obligations, signed by Parent Sierra and Xxxx X. Xxxxxxxx and such agreement shall become effective as each shareholder of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateCompany; (ciii) a legal opinion release agreement from Wesinger, evidencixx Xxxxxger's agreemexx (X) xx forego certain deferred compensation, (B) to release all rights and claims to, and surrender for cancellation certain shares of Xxxxxx Godward LLP dated as Company Common Stock, (C) to forgive the repayment of the Closing Date any and addressed to Parent, all loans made by Wesinger to the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code Coxxxxx xxd (it being understood that, in rendering such opinion, Xxxxxx Godward LLP may rely upon the tax representation letters referred D) to in Section 5.11); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP does not render such opinion release any and all claims against NES or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, renders such opinion to Parent.; (div) a release agreement from Berhorst, evidencixx Xxxxxrst's Agreemexx xx xxxxase any and all claims against NES or Parent; (v) a certificate executed on behalf of the Company by its President and Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5 6.7 and 6.7, 6.8 have been duly satisfied; and; (evi) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective TimeTime of Merger I; and (vii) a certificate executed by Wesinger in his inxxxxxxxx capacity, confirming the accuracy and completeness, as of the date of this Agreement and as of the Closing Date as if made on the Closing Date, of the representations and warranties contained in Sections 2.1, 2.3, 2.20 and 2.21. (b) An employment offer letter, in form and substance satisfactory to Parent, accepted and agreed to in writing by Wesinger. (x) Xxx XBC Release, which was executed contemporaneously with this Agreement, (d) shall not have been rescinded in any manner adverse to Parent and shall be delivered and become effective as of the Closing.

Agreements and Documents. Parent The Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement Escrow Agreement in substantially the form attached hereto as of Exhibit H which shall have been C, executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing DateParent; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective legal opinion of Xxxxxx Godward, dated as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by covering such matters with respect to Parent and Xx. Xxxxxxxx Merger Sub as the Company may reasonably request (and is customary in substantially a transaction such as the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected thereinMerger) and such agreement shall become effective as of or prior to the Closing Date; (c) subject to the last two sentences of this Section 7.4, a legal opinion of Xxxxxx Godward LLP Xxxxxxx, dated as of the Closing Date and addressed to Parentthe Company, to the effect that the Merger will constitute a reorganization within the meaning of Section 368 368(a) of the Code (it being understood thatCode; provided, in rendering such opinion, Xxxxxx Godward LLP may rely upon the tax representation letters referred to in Section 5.11); PROVIDED, HOWEVERhowever, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless will be deemed satisfied if Xxxxxx & Xxxxxxx, counsel Godward shall render such opinion to the Company in form reasonably acceptable to the Company. In rendering the opinion contemplated by this Section, renders such opinion to counsel may rely upon reasonable representations and certificates of Parent., Merger Sub and the Company, including the tax representation letters described in Section 5.14; (d) a certificate executed on behalf by Parent and Merger Sub containing the representation and warranty of the Company by its Chief Executive Officer confirming Parent and Merger Sub that the conditions set forth in Sections 6.17.1, 6.2, 6.4, 6.5 7.2 and 6.7, 7.5 have been duly satisfied; and (e) except as set forth on a Declaration of Registration Rights in the form of Exhibit BF, executed by Parent. Notwithstanding any provisions of this Agreement (including without limitation Section 7.4(c) and Section 8) to the contrary, and without limiting any other rights of Parent hereunder, in the event that neither Xxxxxx Xxxxxxx nor Cooley Godward is able to render the opinion described in Section 7.4(c) solely because the requirement in Section 368(a)(2)(E)(ii) of the Code is not satisfied, the written resignations of all officers and directors of Company shall not be entitled to terminate this Agreement or otherwise refuse or fail to consummate the Merger solely based on the failure to receive such opinion if Parent, in its sole discretion, during the 10-day period described below, shall restructure the Merger (the "Restructuring") so that at the Effective Time, (i) the Company is merged into Merger Sub rather than Merger Sub being merged into the Company, effective as and (ii) all other terms and conditions of the Effective TimeMerger remain identical in all material respects to the terms set forth in this Agreement (and Parent shall in such event have the right to unilaterally cause the Restructuring to occur, and 39. extend the Scheduled Closing Time as reasonably necessary to effectuate the Restructuring, subject to the other conditions hereof). Without limiting the foregoing, in no event shall the Company be entitled to terminate this Agreement or otherwise refuse or fail to consummate the Merger on the sole basis of the inability of Xxxxxx Xxxxxxx and Cooley Godward to render such opinion without first giving Parent at least 10 days' written notice of its intention to do so.

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) an employment agreement Affiliate Agreements in substantially the form attached hereto of Exhibit C, executed by each Person who could reasonably be deemed to be an “affiliate” (as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as that term is used in Rule 145 under the Securities Act) of the Closing DateCompany; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective letter from PricewaterhouseCoopers LLP, dated as of the Closing DateDate and addressed to Parent, reasonably satisfactory in form and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx substance to Parent, updating the letter referred to in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateSection 5.11; (c) a legal opinion of Xxxxxx Cooley Godward LLP Kronish 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 Cxxxxx Godward LLP Kronish llp may rely upon the tax representation letters referred to in Section 5.11); PROVIDED5.10, HOWEVER, that and (ii) if Xxxxxx Cxxxxx Godward LLP Kronish llp does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed to be satisfied if Xxxxxx Sxxxxx Axxxxxxx & XxxxxxxMarkiles, counsel to the Company, LLP renders such opinion to Parent.); (d) a certificate executed on behalf of the Company by its Chief Executive Officer and Chief Financial Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.46.4(a), 6.5 and 6.5, 6.6(a), 6.7, 6.8, 6.11, 6.12, and 6.13 have been duly satisfied (e) each of the consents to assignment identified on Schedule 6.5 to the Disclosure Schedule; and (ef) except as set forth on Exhibit B, the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent The Company shall have received received: (a) the following agreements Lockup Agreements in the form of Exhibit D, executed concurrently with the execution and documents, delivery of this Agreement by each of which Rho Management Trust II, Rho Management Trust III, Rho Management Partners L.P., HealthCare Ventures III, L.P., HealthCare Ventures IV, L.P., HealthCare Ventures V, L.P., and HealthCare Ventures VI, L.P., shall be remain in full force and effect: (a) an employment agreement in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Date; (b) a separation and consulting agreement the Escrow Agreement in substantially the form attached hereto as of Exhibit I-1 which shall have been E, executed by the Escrow Agent and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateParent; (c) a legal opinion certificate signed on behalf of Xxxxxx Godward LLP dated Parent by an executive officer of Parent representing and warranting that the conditions set forth in Section 8.1 and Section 8.2 have been duly satisfied (the “Parent Compliance Certificate”); (d) certificates of good standing (or equivalent documentation) of each of Parent and Merger Sub in their jurisdictions of organization and the various foreign jurisdictions in which they are qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of resolutions of the Closing Date board of directors of Parent and addressed Merger Sub authorizing the execution of this Agreement and the consummation of the transactions contemplated by this Agreement to Parentbe performed by Parent and Merger Sub; and (e) a written opinion from Xxxxxxx XxXxxxxxx LLP, counsel to the Company, to the effect that the Merger will constitute be treated for federal income tax purposes as a reorganization within the meaning of Section 368 368(a) 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 5.11)Code; PROVIDED, HOWEVER, provided that if Xxxxxx Godward Xxxxxxx XxXxxxxxx LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, Godward Kronish LLP renders such opinion to Parent. (d) a certificate executed on behalf of the Company by its Chief Executive Officer confirming (it being agreed that Parent and the conditions set forth Company shall each provide reasonable cooperation, including making reasonable and customary representations, to Xxxxxx Godward Kronish LLP or Xxxxxxx XxXxxxxxx LLP, as the case may be, to enable them to render such opinion and that counsel shall be entitled to rely on such representations and such assumptions as they deem appropriate in Sections 6.1, 6.2, 6.4, 6.5 and 6.7, have been duly satisfied; and (e) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective Timerendering such opinion).

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) an employment agreement Affiliate Agreements in substantially the form attached hereto of EXHIBIT C, executed by each Person who could reasonably be deemed to be an “affiliate” (as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as that term is used in Rule 145 under the Securities Act) of the Closing DateCompany; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective letter from PricewaterhouseCoopers LLP, dated as of the Closing DateDate and addressed to Parent, reasonably satisfactory in form and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx substance to Parent, updating the letter referred to in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateSection 5.11; (c) a legal opinion of Xxxxxx Godward LLP Kronish 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 Kronish LLP may rely upon the tax representation letters referred to in Section 5.11); PROVIDED5.10, HOWEVER, that and (ii) if Xxxxxx Cooley Godward Kronish LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed to be satisfied if Xxxxxx Xxxxxxxx & XxxxxxxMarkiles, counsel to the Company, LLP renders such opinion to Parent.); (d) a certificate executed on behalf of the Company by its Chief Executive Officer and Chief Financial Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.46.4(a), 6.5 and 6.5, 6.6(a), 6.7, 6.8, 6.11, 6.12, and 6.13 have been duly satisfied (e) each of the consents to assignment identified on Schedule 6.5 to the Disclosure Schedule; and (ef) except as set forth on Exhibit B, the written resignations of all officers and directors of each of the CompanyAcquired Corporations, effective as of the Effective Time.

Agreements and Documents. Parent The Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement Affiliate Agreements in substantially the form attached hereto as of Exhibit H which shall have been D, executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as each Person who could reasonably be deemed to be an "affiliate" of the Closing DateCompany (as that term is used in Rule 145 under the Securities Act); (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective legal opinion of Pillsbury Madison & Sutro LLP dated as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as of Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateJ; (c) a legal opinion of Xxxxxx Godward LLP dated as of the Closing Date and addressed to Parentthe Company, 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 5.116.9); PROVIDEDprovided, HOWEVERhowever, that if Xxxxxx Cooley Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed to be satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, Parent renders such opinion to Parent.the Company. In rendering such opinion, such firm may rely on the tax representation letters referred to in Section 6.9; (d) a certificate executed on behalf of the Company Parent by its Chief Executive Officer confirming that the conditions set forth in Sections 6.18.1, 6.28.2, 6.48.4, 6.5 8.6, 8.7 (insofar as it relates to the Consents identified in Part 8.7 of the Parent Disclosure Schedule), 8.9, 8.10 and 6.7, 8.18 have been duly satisfied; and; (e) except as set forth on Exhibit B, the written resignations of all officers and directors of Parent (except for the Companyresignation of Xxxxx Xxxxxxx as a director of Parent), effective as of the Effective Time; (f) evidence of Parent's compliance with Section 6.10(b); and (g) a Registration and Stockholder Rights Agreement in the form of Exhibit G, executed by Parent and ABB.

Agreements and Documents. Parent The Company shall have received received: (a) the following agreements Lockup Agreements in the form of Exhibit D, executed concurrently with the execution and documents, delivery of this Agreement by each of which Rho Management Trust II, Rho Management Trust III, Rho Management Partners L.P., HealthCare Ventures III, L.P., HealthCare Ventures IV, L.P., HealthCare Ventures V, L.P., and HealthCare Ventures VI, L.P., shall be remain in full force and effect: (a) an employment agreement in substantially the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Date; (b) a separation and consulting agreement the Escrow Agreement in substantially the form attached hereto as of Exhibit I-1 which shall have been E, executed by the Escrow Agent and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing DateParent; (c) a legal opinion certificate signed on behalf of Xxxxxx Godward LLP dated Parent by an executive officer of Parent representing and warranting that the conditions set forth in Section 8.1 and Section 8.2 have been duly satisfied (the “Parent Compliance Certificate”); (d) certificates of good standing (or equivalent documentation) of each of Parent and Merger Sub in their jurisdictions of organization and the various foreign jurisdictions in which they are qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of resolutions of the Closing Date board of directors of Parent and addressed Merger Sub authorizing the execution of this Agreement and the consummation of the transactions contemplated by this Agreement to Parentbe performed by Parent and Merger Sub; and (e) a written opinion from Bxxxxxx MxXxxxxxx LLP, counsel to the Company, to the effect that the Merger will constitute be treated for federal income tax purposes as a reorganization within the meaning of Section 368 368(a) 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 5.11)Code; PROVIDED, HOWEVER, provided that if Xxxxxx Godward Bxxxxxx MxXxxxxxx LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, Cxxxxx Godward Kronish LLP renders such opinion to Parent. (d) a certificate executed on behalf of the Company by its Chief Executive Officer confirming (it being agreed that Parent and the conditions set forth Company shall each provide reasonable cooperation, including making reasonable and customary representations, to Cooley Godward Kronish LLP or Bxxxxxx MxXxxxxxx LLP, as the case may be, to enable them to render such opinion and that counsel shall be entitled to rely on such representations and such assumptions as they deem appropriate in Sections 6.1, 6.2, 6.4, 6.5 and 6.7, have been duly satisfied; and (e) except as set forth on Exhibit B, the written resignations of all officers and directors of the Company, effective as of the Effective Timerendering such opinion).

Agreements and Documents. Parent shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an employment agreement agreements, in substantially form and substance reasonably satisfactory to Parent, terminating or amending the form attached hereto as Exhibit H which shall have been executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as of the Closing Dateagreements identified on Schedule ‎5.6 in accordance with Section 5.6; (b) a separation and consulting agreement in substantially the form attached hereto as Exhibit I-1 which shall have been executed and delivered by Parent and Xxxx X. Xxxxxxxx and such agreement shall become effective as of the Closing Date, and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior to the Closing Date; (c) 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 5.11); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, renders such opinion to Parent. (d) a certificate duly executed on behalf of the Company by its Chief Executive Officer confirming the chief executive officer of the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.17.1, 6.2, 6.4, 6.5 7.2 and 6.7, 7.4 have been duly satisfied; andsatisfied (the “Company Closing Certificate”); (c) the Certificate of Merger, duly executed by the Company; (d) the Sale and Merger Consideration Spreadsheet; (e) except as set forth on Exhibit B, the written resignations of all officers and directors of the Companyitems required to be delivered pursuant to Section 1.10(a); (f) the Significant Owner Agreement executed by Xxxxx Xxxxxxx (“Xxxxxxx”) shall, effective assuming due execution and delivery of Parent’s signature thereto and no repudiation by Parent thereof, be in full force and effect as of the Effective Time; (i) the Employment Documents executed by Xxxxxxx as of the date of this Agreement shall, assuming due execution and delivery of Parent’s signature thereto and no repudiation by Parent thereof, be in full force and effect as of the Effective Time and (ii) Xxxxxxx shall not have died or have suffered a Disability; (h) the Management Deferral Agreements executed by Xxxxxxx shall, assuming due execution and delivery of Parent’s signature thereto and no repudiation thereof, be in full force and effect as of the Effective Time; (i) the Escrow Agreement, duly executed by the Securityholders’ Agent; (j) the FIRPTA Certificate executed by the Company and the FIRPTA Statement executed by each Blocker; (k) the Pay Off Letters, duly executed by each of the creditors under the Contracts identified on Schedule 5.10; and (l) certificates of good standing (or equivalents thereof) for each of the Acquired Companies from the Secretary of State of the State of Delaware.

Agreements and Documents. Parent (and, where applicable, the Company) shall have received the following agreements and documents, each of which shall be in full force and effect: (a) an letters setting forth offers of employment agreement in substantially with the form attached hereto as Exhibit H which shall have been Company, executed and delivered by Parent and Xxxxxxx X. Xxxxxxxxx, and such agreement shall become effective as each of the Closing Dateemployees set forth on Part 6.5(a) of the Company Disclosure Schedule; (b) a separation Release and consulting agreement Consent, in substantially the form attached hereto as of Exhibit I-1 which shall have been C, executed by --------- each of the Designated Shareholders and delivered Other Shareholders (each, a "Release and Consent"); (c) Investment Representation Letters in the form of Exhibit D, --------- executed by Parent each of the Designated Shareholders and Other Shareholders; (d) Nondisclosure and Noncompetition agreements, executed by the employees of the Company and its Subsidiaries listed in Part 6.5(d) of the Company Disclosure Schedule; (e) assignments duly executed by the Company and its Subsidiaries, reasonably satisfactory to Parent, assigning all rights and interests of the Company and its Subsidiaries under all non-compete, non-disclosure or other similar documents executed by present and former employees, consultants or contractors; (f) a legal opinion of Xxxxxx Xxxxx Xxxx X. Xxxxxxxx and such agreement shall become effective & Xxxx, P.C., dated as of the Closing Date, in form and an executive severance benefits agreement shall have been executed and delivered by Parent and Xx. Xxxxxxxx in substantially the form attached hereto as Exhibit I-2 (or a similar agreement which provides Xx. Xxxxxxxx with an equivalent economic benefit as reflected therein) and such agreement shall become effective as of or prior substance satisfactory to the Closing DateParent; (c) 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 5.11); PROVIDED, HOWEVER, that if Xxxxxx Godward LLP does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if Xxxxxx & Xxxxxxx, counsel to the Company, renders such opinion to Parent. (dg) a certificate executed on behalf by each Designated Shareholder stating that, to its Knowledge, each of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5 6.7 and 6.7, 6.8 shall have been duly satisfied; andsatisfied (each, a "Shareholder's Closing Certificate"); (eh) except as set forth on Exhibit B, the written resignations of all officers and directors of the CompanyCompany and its Subsidiaries, effective as of the Effective Time; (i) written resignations of the employees set forth on Part 6.5(i) of the Company Disclosure Schedule, together with severance agreements in form and substance satisfactory to Parent and duly executed by each such employee; (j) an amended and restated Employment Agreement between Parent and Xxxxxx Xxxx, in form satisfactory to Parent; (k) an Escrow Agreement in form and substance satisfactory to the Designated Shareholders, the Company and Parent, executed by the parties thereto; (l) 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 (m) a certificate of the treasurer of the Company certifying as to the payment of Taxes in Delaware.