Common use of Conditions of Merger Clause in Contracts

Conditions of Merger. 40 SECTION VI.1 Conditions to Obligation of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following conditions: (a) This Agreement shall have been adopted by the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock. (b) No statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired. (d) The Form S-4 and any required post-effective amendment thereto shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, and any material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied with. (e) The shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions of Merger. 40 SECTION VI.1 5.1 Conditions to Obligation the Obligations of Each Party to Effect the Merger. The ---------------------------------------------------------------- respective obligations of each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) fulfillment at or prior to the Closing Date Effective Time of each of the following conditions: (a) This Agreement and the Merger shall have been approved and adopted by the affirmative requisite vote of the holders of a majority stockholders of the outstanding shares of Company Common StockCompany. (b) No statute, rule, regulation, executive order, decree, ruling, injunction or other order Any waiting period (whether temporary, preliminary or permanentand any extension thereof) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts applicable to the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated expired or expiredbeen terminated. (c) No temporary restraining order, preliminary or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation or order shall be in effect which would make the acquisition or holding by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. Parent ------------------------------------------------------------ and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied at or prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The representations and warranties of the Company set forth in Article 2 (other than Section 2.3(a)) shall be true and correct in all material respects (without giving duplicative effect to any materiality qualification contained in the applicable representation or warranty) as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date (which shall remain true and correct in all material respects (without giving duplicative effect to any materiality qualification contained in the applicable representation or warranty) as of such date). (b) The representations and warranties of the Company set forth in Section 2.3(a) shall be true and correct in all respects as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date (which shall remain true and correct in all respects as of such date). (c) The Company shall have performed and complied (i) in all respects with its covenants under Sections 4.1(a)(ii) and 4.1(a)(iii) and (ii) in all material respects (without giving duplicative effect to any materiality qualification contained in the applicable obligation) with all other covenants and agreements contained in this Agreement required to be performed or complied with by it on or before the Closing Date. (d) The Form S-4 and any required post-effective amendment thereto shall have become effective under Since the Securities Act and date of this Agreement, there shall not be have been the subject occurrence of any stop order event or proceedings seeking condition that has had or would reasonably be expected to have a stop order, Material Adverse Effect other than changes relating to or arising out of the economy in general or the industries of the Company and any material "blue sky" its Subsidiaries in general and other state securities laws applicable not specifically relating to the registration Company or any of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied withits Subsidiaries. (e) The shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have executed and delivered to Purchaser and Parent at and as of the Closing a certificate, duly executed by the Company's President and Chief Financial Officer, in form and substance reasonably satisfactory to Parent and Parent's counsel, certifying that to such officers' knowledge, the conditions specified in (a), (b), (c) and (d) have been approved for listing on satisfied. (f) The Company and the NYSE, subject Purchaser shall have obtained the Pre-Closing License Approvals referred to official notice in Section 4.14. (g) There shall not have occurred a Special Regulatory Event. (h) The Company shall have obtained the third party consents listed in Section 5.2(h) of issuancethe Company Disclosure Letter. (i) The Company shall have resolved certain outstanding regulatory issues as provided in Section 5.2(i) of the Company Disclosure Letter.

Conditions of Merger. 40 SECTION VI.1 Conditions to Obligation of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following conditions: : (a) This this Agreement shall have been adopted approved by the affirmative vote of the holders of a majority of the outstanding shares of Company Voting Common Stock. , unless Merger Sub shall have acquired 90% or more of the outstanding shares of each class of the capital stock of the Company; (b) No no statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. ; (c) Any any waiting period applicable to the Offer and the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired. ; and (d) The Form S-4 and any required post-effective amendment thereto Merger Sub shall have become effective under (i) commenced the Securities Act Offer pursuant to Article II hereof and shall not be the subject of any stop order or proceedings seeking a stop order(ii) purchased, and any material "blue sky" and other state securities laws applicable pursuant to the registration terms and conditions of the Parent such Offer, all shares of Common Stock duly tendered and not withdrawn; provided, however, that neither Parent nor Merger Sub shall be entitled to be exchanged for Company Common Stock rely on the condition in the Merger clause (ii) above if either of them shall have been complied with. (e) The failed to purchase shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to the Offer in breach of their obligations under this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance.Agreement. 33 35 ARTICLE

Conditions of Merger. 40 SECTION VI.1 Section 6.1. Conditions to Obligation Obligations of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at on or prior to the Closing Date of the following conditions, except, to the extent permitted by applicable law, that such conditions may be waived in writing by the joint action of the parties hereto: (a) This Agreement shall have been adopted approved by the affirmative requisite vote of the holders of a majority of the outstanding shares of Company Common Stock. The Merger shall have been approved by the requisite vote of the holders of the outstanding shares of Parent Common Stock. (b) No statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibitsprohibiting, restrainsrestraining, enjoins or restricts enjoining the consummation of the Merger; provided, however, that each of the parties shall use their have used all reasonable best efforts to cause any such statute, rule, regulation, executive order, decree, ruling, injunction or other order to be lifted or vacated or liftedto appeal such ruling, injunction or order as promptly as possible. (c) Any All applicable waiting period applicable to the Merger periods under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired. (d) The Form S-4 and any required post-effective amendment thereto shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, and any all necessary approvals and permits under material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied withobtained. (e) The shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance. (f) All consents, authorizations, orders, permits and approvals of (or registrations, declarations or filings with) any Governmental Authority in connection with the execution, delivery and performance of this Agreement shall have been obtained or made and shall have become Final Orders, except for filings in connection with the Merger and any other documents required to be filed after the Effective Time and except when the failure to have obtained or made any such consent, authorization, order, permit, approval, registration, declaration or filing would not have a Parent Material Adverse Effect or, following the Effective Time, a Surviving Corporation Material Adverse Effect. A "Final Order" means action by the relevant regulatory authority which has not ----------- been reversed, stayed, enjoined, set aside, annulled or suspended, with respect to which any waiting period prescribed by law before the transactions contemplated hereby may be consummated has expired, and as to which all conditions to the consummation of such transactions, prescribed by law, regulation or order have been satisfied.

Conditions of Merger. 40 SECTION VI.1 Section 7.1 Conditions to Obligation of Each each Party to Effect the Merger. The respective obligations of each party Party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following conditions: (a) This this Agreement and the Merger shall have been adopted approved by the affirmative vote stockholders of the holders Company in the manner required under the DGCL and the certificate of a majority incorporation of the outstanding shares of Company Common Stock.Company; (b) No this Agreement and the Merger shall have been approved by the stockholders of HCPI in the manner required under the MGCL and the charter of HCPI. (c) no statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority Governmental Entity of competent jurisdiction and no other legal restraint or prohibition shall be in effect which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided, however, that the parties Parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired.; (d) The Form S-4 and any required post-effective amendment thereto the Registration Statement shall have become effective under the Securities Act and shall not be the subject of any stop order or suspending the effectiveness of the Registration Statement nor shall proceedings seeking a stop orderfor that purpose have been threatened, and any material "blue sky" Blue Sky Law permits and other state securities laws approvals applicable to the registration of the Parent HCPI Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied with.obtained; (e) The all filings required to be made prior to the Closing by any Party or any of its respective Subsidiaries with, and all consents, approvals and authorizations required to be obtained prior to the Closing by any Party or any of its respective Subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained, except where the failure to obtain such consents would not cause a Company Material Adverse Effect or a HCPI Material Adverse Effect and could not reasonably be expected to subject the Parties or their Affiliates or any directors, trustees, officers, agents or advisors of any of the foregoing to the risk of criminal liability; (f) all consents or approvals of all Persons (other than Governmental Entities) required for, in connection with, or as a result of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby shall have been obtained and shall be in full force and effect, except for those the failure of which to obtain would not cause a Company Material Adverse Effect or a HCPI Material Adverse Effect; and (g) the shares of Parent HCPI Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, subject to NYSE upon official notice of issuance. Section 7.2 Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) Each representation and warranty of HCPI contained in this Agreement that is qualified by materiality shall be true and correct at and as of the Effective Time as if made at and as of the Effective Time and each representation and warranty of HCPI that is not so qualified shall be true and correct in all material respects at and as of the Effective Time as if made as of the Effective Time, in each case, except (i) as contemplated or permitted by this Agreement and (ii) to the extent that any such representation or warranty shall have been expressly made as of an earlier date, in which case such representation and warranty shall have been true and correct, or true and correct in all material respects, as the case may be, as of such earlier date; (b) HCPI shall have performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by it at or prior to the Closing Date; (c) The Company shall have received a certificate executed on behalf of HCPI by the Chief Executive Officer or Chief Financial Officer of HCPI to the effect set forth in clauses (a) and (b) of this Section 7.2; (d) The Company shall have received an opinion of Xxxxxxxx & Xxxxxxxx, dated as of the Closing Date, in form and substance reasonably satisfactory to the Company, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes, (i) the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code, and (ii) Company and HCPI will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, Xxxxxxxx & Xxxxxxxx may receive and rely upon representations including those contained in this Agreement or in certificates of officers of the Parties and others; (e) The Company shall have received the opinion of Xxxxxx & Xxxxxxx in the form attached as Exhibit C hereto (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated the Closing Date, to the effect that, (i) commencing with its taxable year ended December 31, 1985, HCPI was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and (ii) its method of operation has enabled it and its proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; and (f) Xxxxxx Xxxxxxxx, LLP shall have delivered to the Company the letter described in clause (a) of Section 6.14 at the time provided in clause (a) of Section 6.14. Section 7.3 Conditions to Obligations of HCPI to Effect the Merger. The obligations of HCPI to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) Each representation and warranty of the Company contained in this Agreement that is qualified by materiality shall be true and correct at and as of the Effective Time as if made at and as of the Effective Time and each representation and warranty of the Company that is not so qualified shall be true and correct in all material respects at and as of the Effective Time as if made as of the Effective Time, in each case, except (i) as contemplated or permitted by this Agreement and (ii) to the extent that any such representation or warranty shall have been expressly made as of an earlier date, in which case such representation and warranty shall have been true and correct, or true and correct in all material respects, as the case may be, as of such earlier date; (b) The Company shall have performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by it at or prior to the Closing Date; (c) HCPI shall have received a certificate executed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company to the effect set forth in clauses (a) and (b) of this Section 7.3; (d) HCPI shall have received an opinion of Xxxxxx & Xxxxxxx, dated as of the Closing Date, in form and substance reasonably satisfactory to HCPI, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of such time, for federal income tax purposes, (i) the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Code, and (ii) Company and HCPI will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, Xxxxxx & Xxxxxxx may receive and rely upon representations including those contained in this Agreement or in certificates of officers of the Parties or others; (e) HCPI shall have received the opinion of Xxxxx, Xxxxxx & Xxxxxx LLP and the opinion of Xxxxxxxx & Xxxxxxxx in the forms attached hereto as Exhibit D and Exhibit E, respectively (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated the Closing Date, that, taken together, are to the effect that, commencing with its taxable year ended December 31, 1987, the Company was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and its method of operation has enabled it to meet, through the Effective Time, the requirements for qualification and taxation as a REIT under the Code; (f) Xxxxxx Xxxxxxxx, LLP shall have delivered to HCPI the letters described in clause (a) of Section 6.13, at the time provided in clause (a) of Section 6.13

Conditions of Merger. 40 SECTION VI.1 5.1 Conditions to Obligation the Obligations of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) fulfillment at or prior to the Closing Date Effective Time of each of the following conditions: (a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote of the holders of a majority of shares held by the outstanding shares stockholders of Company Common Stockthe Company, as required under the laws of the State of Delaware. (b) No statute, rule, regulation, executive order, decree, ruling, injunction or other order Any waiting period (whether temporary, preliminary or permanentand any extension thereof) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts applicable to the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated expired or expiredbe exterminated. (c) No temporary restraining order, preliminary or permanent injunction, judgment or other order, decree or ruling nor any statute, rule, regulation , SEC stop order or other order shall be in effect which would make the acquisition or holding by Parent or its Affiliates of Shares or shares of Common Stock of the Surviving Corporation illegal or otherwise prevent the consummation of the Merger. 5.2 Conditions Precedent to Parent's and Purchaser's Obligations. In addition to the conditions set forth in Section 5.1, the Parent and Purchaser shall be obligated to perform the acts contemplated for performance by them under Article I only if each of the following conditions is satisfied at or prior to the Closing Date, unless any such condition is waived in writing by Parent and Purchaser: (a) The receipt of cash proceeds of the Financing under the terms and in the amounts set forth pursuant to the terms of the Commitments ("Financing Condition"). (b) The representations and warranties of the Company set forth in Article 2 shall be true and correct as of the Closing Date with the same force and effect as though made again at and as of the Closing Date, except for any representations and warranties that address matters only as of a particular date specifically set forth in such representation, other than the date hereof, (which shall remain true and correct as of such date). (c) The Company shall have performed and complied (x) in all respects with its covenants under Sections 4.1(ii) and 4.1(iii) and (y) in all material respects, individually or in the aggregate, (without giving duplicative effect to any materiality qualification contained in the applicable obligation) with all other covenants and agreements contained in this Agreement required to be performed or complied with by it on or before the Closing Date. (d) The Form S-4 and any required post-effective amendment thereto shall have become effective under Since the Securities Act and date of this Agreement, there shall not be have been the subject occurrence of any stop order event or proceedings seeking condition, or series of events or conditions, that has had or would reasonably be expected to have a stop order, and any material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied withMaterial Adverse Effect. (e) The shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions of Merger. 40 SECTION VI.1 Conditions to Obligation of Each Party to Effect the Merger. The respective obligations of each party to effect the Merger shall not be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following conditionseffected unless and until: (a) This Agreement shall have been adopted by the affirmative vote of the holders of a majority of the outstanding shares of The Holding Company Common Stock.Merger has become effective; (b) All approvals, consents or waivers of any court, administrative agency or commission or other governmental authority or instrumentality (each a “Governmental Entity”) required to permit consummation of the transactions contemplated by this Plan shall have been obtained and shall remain in full force and effect, and all statutory waiting periods shall have expired; provided, however, that none of such approvals, consents or waivers shall contain any condition or requirement that would so materially and adversely impact the economic or business benefits to Community Trust Bank of the transactions contemplated hereby that, had such condition or requirement been known, Community Trust Bank would not, in its reasonable judgment, have entered into this Plan; (c) No party hereto shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction that enjoins or prohibits the consummation of the Merger and no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Merger or any transactions contemplated by this Plan. No statute, rule, regulation, executive order, decree, ruling, injunction rule or other order (whether temporary, preliminary or permanent) regulation shall have been enacted, entered, promulgated or enforced by any court Governmental Entity which prohibits or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts the makes illegal consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired.and (d) The Form S-4 Community Trust Bank and any required post-effective amendment thereto Eagle Bank shall have become effective under obtained the Securities Act and consent or approval of each person or entity (other than the governmental approvals or consents referred to in Section 7(b) above) whose consent or approval shall not be required to consummate the subject of any stop order or proceedings seeking a stop order, and any material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied withMerger. (e) The shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions of Merger. 40 SECTION VI.1 The obligations of the parties to this Agreement to consummate the Merger and the transactions contemplated by this Agreement shall be subject to fulfillment or waiver by the parties hereto, on or prior to the Effective Time, of each of the following conditions: Section 2.1 Conditions to Each Party's Obligation of Each Party to Effect the Merger. The respective obligations obligation of each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Effective Date of the following conditions: (a) This Agreement shall have been approved and adopted by the affirmative vote of the holders of a majority of the outstanding shares PMI Common Stock and the issuance of Company IDDS Common Stock pursuant to the Merger and the other terms of this Agreement shall have been approved by the affirmative vote of the holders of a majority of the IDDS Common Stock. (b) Other than the filing provided for by Section 1.1, all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations or terminations of waiting periods imposed by, any public body or authority, including courts of competent jurisdiction, domestic or foreign ("Governmental Entity"), and all required third party consents, of the failure to obtain which would have a material adverse effect on IDDS, shall have been filed, occurred or been obtained. IDDS shall have received all state securities or "Blue Sky" permits and other authorizations necessary to issue the IDDS Common Stock pursuant to the Merger and the other terms of this Agreement. (c) No statute, rule, regulation, executive order, decree, ruling, decree or injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts prohibits the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired. (d) The Form S-4 and any required post-effective amendment thereto shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, and any material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied witheffect. (e) The shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions of Merger. 40 SECTION VI.1 Conditions The Merger is conditioned on the following: 1. That the parties to Obligation this Plan of Each Party Merger have not suffered an uninsured loss on account of fire, flood, accident, or other calamity of such a character as to Effect interfere materially with the Mergercontinuous operation of their businesses or materially affect adversely their condition, financial or otherwise, regardless of whether or not such loss shall have been insured. 2. The That no material transactions shall have been entered into by the parties to this Plan of Merger other than transactions in the ordinary course of business between the date of their last financial statements and the Effective Time, other than as referred to in certain documents. 3. Except as disclosed to the other parties, that no material adverse change in the aggregate shall have occurred in the financial condition of the parties to this Plan of Merger since the date of their last financial statements. 4. That none of the properties or assets of the parties shall have been sold or otherwise disposed of other than in the ordinary course of business during such period, except with the written consent of the other parties. 5. That the parties shall have performed and complied with the provisions and conditions of this Agreement on their respective obligations part to be performed and complied with prior to the Effective Time, and that certain representations and warranties made by the parties are true and correct in all material respects, both when made and as of the Effective Time. 6. That this Plan of Merger shall have been approved by appropriate corporate action of the parties to this Plan of Merger and that corporate votes and resolutions to that effect have been delivered by each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or others prior to the Closing Date date of the following conditions:this Plan of Merger. (a) This Agreement 7. That there shall have been adopted by full compliance with the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock. (b) No statute, rule, regulation, executive order, decree, ruling, injunction applicable securities or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired. (d) The Form S-4 and any required post-effective amendment thereto shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, and any material "blue sky" laws and regulations of any state or other state securities laws applicable governmental body having jurisdiction over the Merger, which have not been preempted by Federal law or with respect to which a claim of preemption could reasonably be made. 8. That the registration parties hereto shall have received certain opinions of counsel satisfactory to such parties in form and substance. 9. That the Parent Corporation shall have held a meeting of its Board of Directors at which meeting all of its directors shall have resigned seriatim and the persons designated by the Surviving Corporation shall have been elected as directors of the Parent Common Stock to be exchanged for Company Common Stock in Corporation, and that the Merger Parent Corporation shall have been complied withprovided the Surviving Corporation with a certified copy of the actions taken at such meeting. (e) The shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions of Merger. 40 SECTION VI.1 7.1. Conditions to Obligation of for Each Party Party's Obligations to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at on or prior to the Closing Date Effective Time of the following conditions: (a) This Purchaser shall have made, or caused to be made, the Offer and shall have purchased, or caused to be purchased, the Shares pursuant to the Offer; (b) The Merger and this Agreement shall have been approved and adopted by the affirmative requisite vote of the holders of a majority shareholders of the outstanding shares Company, if required by the Georgia Code or the Company's Third Amended and Restated Articles of Company Common Stock.Incorporation; (bc) No statute, rule, regulation, executive orderjudgment, writ, decree, ruling, order or injunction or other order (whether temporary, preliminary or permanent) shall have been promulgated, enacted, enteredentered or enforced, promulgated or enforced and no other action shall have been taken, by any court Governmental Entity that in any of the foregoing cases has the effect of making illegal or governmental authority of competent jurisdiction which prohibitsdirectly or indirectly restraining, restrains, enjoins prohibiting or restricts restricting the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.and (cd) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated expired or expiredhave been terminated. SECTION 7.2. Conditions for Obligations of Parent and Purchaser. The obligations of Parent and Purchaser to effect the Merger shall be further subject to the satisfaction on or prior to the Effective Time of the following additional conditions: (da) The Form S-4 representations and any required post-effective amendment thereto warranties of the Company set forth in this Agreement that are qualified by reference to materiality or a Material Adverse Effect shall have become effective under the Securities Act be true and shall not be the subject of any stop order or proceedings seeking a stop ordercorrect, and any such representations and warranties that are not so qualified shall be true and correct in all material "blue sky" respects, in each case as if such representations and other state securities laws applicable warranties were made at the Effective Time; (b) The Company shall have performed in all material respects all obligations and complied in all material respects with all agreements and covenants of the Company to be performed or complied with by it under this Agreement at or prior to the registration Effective Time; and (c) All governmental consents, orders and approvals required for the consummation of the Parent Common Stock Merger (including, without limitation, all such consents, orders and approvals as are necessary to be exchanged for Company Common Stock in the Merger prevent any Authorization from being revoked, suspended or otherwise adversely affected, and to prevent any penalty from being imposed) shall have been complied withobtained and shall be in effect. (e) The shares of Parent Common Stock issuable to the holders of Company Common Stock pursuant to this Agreement shall have been approved for listing on the NYSE, subject to official notice of issuance.

Conditions of Merger. 40 SECTION VI.1 6.1 Conditions to Obligation for the Benefit of Each Party to Effect the MergerCompany, Adherex and Adherex US. The respective obligations of each party of the Company, Adherex and Adherex US to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date Effective Time of the following conditions: (a) This Agreement the Merger and this Agreement, with or without amendment, shall have been approved and adopted by the affirmative vote Stockholders in accordance with the provisions of the holders of a majority of the outstanding shares of Company Common Stock. (b) No statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (c) Any waiting period applicable to the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired. (d) The Form S-4 and any required post-effective amendment thereto shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop orderDelaware Law, and any material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied with.approved by the Shareholders at the Adherex Meeting by the Shareholders in accordance with the provisions of all applicable laws, the Certificate of Incorporation, the By-Laws, the Constating Documents and the requirements of any applicable regulatory authorities; (b) the TSX shall have approved the terms of the Merger and shall have conditionally approved the listing thereon of each of the Merger Shares and the Warrant Shares, subject to compliance with the usual requirements of the TSX; (c) each of the persons who will be officers and directors of Adherex following the Effective Time and each other person who will hold, directly or indirectly, more than 5% of the Common Shares following the Effective Time and each affiliate of any such person (each such officer, director, shareholder and affiliate thereof, a “Restricted Party”) shall enter into an agreement with Adherex substantially in the form attached at Exhibit “G” hereto (each, a “Lock-up Agreement”); (d) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Merger shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances; (e) The shares there shall not be in force any order or decree of Parent Common Stock issuable to a court of competent jurisdiction, any federal, provincial, municipal or other governmental department or any commission, board, agency or regulatory body restraining, interfering with or enjoining the holders consummation of Company Common Stock pursuant to the transactions contemplated by this Agreement Agreement, including, without limitation, the Merger; and (f) none of the consents, orders, regulations or approvals contemplated herein shall have been approved for listing on contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by either of Adherex or the NYSECompany, subject to official notice of issuanceacting reasonably.

Conditions of Merger. 40 SECTION VI.1 Section 7.1 Conditions to Obligation of Each each Party to Effect the Merger. The respective obligations of each party Party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following conditions: (a) This Agreement the Company Voting Proposal shall have been adopted approved by the affirmative vote Company Stockholders in the manner required under the MGCL, the rules of the holders of a majority NYSE and the Organizational Documents of the outstanding shares of Company Common Stock.Company; (b) No no statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority Governmental Entity of competent jurisdiction and no other legal restraint or prohibition shall be in effect which prohibits, restrains, restrains or enjoins or restricts the consummation of the Merger; provided, however, that the parties Parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.; (c) Any waiting period applicable there shall not be instituted or pending any Action by a Governmental Entity as a result of this Agreement or any of the transactions contemplated herein which would reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect (assuming for purposes of this Section 7.1(c) that the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired.occurred); (d) The Form S-4 and any required post-effective amendment thereto the Registration Statement shall have become effective under the Securities Act and shall not be the subject of any stop order or suspending the effectiveness of the Registration Statement nor shall proceedings seeking a stop orderfor that purpose have been threatened, and any material "blue sky" Blue Sky Law permits and other state securities laws approvals applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied with.obtained; (e) The all filings required to be made prior to the Closing by any Party or any of its respective Subsidiaries with, and all consents, approvals and authorizations required to be obtained prior to the Closing by any Party or any of its respective Subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained, except where the failure to obtain such consents would not cause a Company Material Adverse Effect or a Parent Material Adverse Effect and could not reasonably be expected to subject the Parties or their Affiliates or any directors, officers, agents or advisors of any of the foregoing to the risk of criminal liability; and (f) the shares of Parent Common Stock issuable to the holders of Company Common Stock Shares pursuant to this Agreement shall have been approved for listing on the NYSE, subject to NYSE upon official notice of issuance.

Conditions of Merger. 40 SECTION VI.1 Section 7.1 Conditions to Obligation of Each each Party to Effect the Merger. The respective obligations of each party Party to effect the Merger shall be subject to the satisfaction (or, to the extent permitted by applicable law, waiver) at or prior to the Closing Date of the following conditions: (a) This Agreement the Company Voting Proposal shall have been adopted approved by the affirmative vote Company Stockholders in the manner required under the MGCL, the rules of the holders of a majority NYSE and the Organizational Documents of the outstanding shares of Company Common Stock.Company; (b) No no statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any court or governmental authority Governmental Entity of competent jurisdiction and no other legal restraint or prohibition shall be in effect which prohibits, restrains, restrains or enjoins or restricts the consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.; (c) Any waiting period applicable to if Parent has made a Stock Election, the Merger under the HSR Act and any applicable foreign antitrust or competition laws shall have terminated or expired. (d) The Form S-4 and any required post-effective amendment thereto Registration Statement shall have become effective under the Securities Act and shall not be the subject of any stop order or suspending the effectiveness of the Registration Statement nor shall proceedings seeking a stop orderfor that purpose have been threatened, and any material "blue sky" Blue Sky Law permits and other state securities laws approvals applicable to the registration of the Parent Common Stock to be exchanged for Company Common Stock in the Merger shall have been complied obtained; provided that, if this condition cannot be satisfied before the Termination Date and Parent has made a Stock Election, such Stock Election shall be deemed to have been revoked and only Cash Consideration shall be paid in the Merger; (d) all filings required to be made prior to the Closing by any Party or any of its respective Subsidiaries with., and all consents, approvals and authorizations required to be obtained prior to the Closing by any Party or any of its respective Subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained, except where the failure to obtain such consents would not cause a Company Material Adverse Effect or a Parent Material Adverse Effect and could not reasonably be expected to subject the Parties or their Affiliates or any directors, officers, agents or advisors of any of the foregoing to the risk of criminal liability; (e) The if Parent has made a Stock Election, the shares of Parent Common Stock issuable to the holders of Company Common Stock Shares pursuant to this Agreement shall have been approved for listing on the NYSE, subject to NYSE upon official notice of issuance; provided that, if this condition cannot be satisfied before the Termination Date and Parent has made a Stock Election, such Stock Election shall be deemed to have been revoked and only Cash Consideration shall be paid in the Merger; and Section 7.2 Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company, CTOP and Pinecreek OP to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) The representations and warranties of Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub contained in this Agreement shall be true and correct (without regard to any materiality or Parent Material Adverse Effect qualifier contained therein), on and as of the date hereof and on and as of the Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct as of the specified date), except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that the representations set forth in Section 4.3(Capitalization), Section 4.5(Compliance), Section 4.6(SEC Documents), Section 4.7(Absence of Certain Changes), 4.10(Taxes), 4.12(Proxy Statement; Form S-4 Registration Statement; Other Information) and 4.13 (Authorization for Parent Common Stock) need only be true and correct for purposes of satisfying the condition set forth in this Section 7.2(a) if Parent has made and not revoked a Stock Election. (b) Parent shall have performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by it at or prior to the Closing Date. (c) There shall not be instituted, pending or threatened any Action by a Governmental Entity as a result of this Agreement or any of the transactions contemplated herein which would reasonably be expected (i) to result in a claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, against a director, officer or employee of the Company or (ii) if Parent has made a Stock Election, to have a Parent Material Adverse Effect (assuming for purposes of this Section 7.2(c) that the Merger shall have occurred); (d) The Company shall have received a certificate executed on behalf of Parent by the Chief Executive Officer or Chief Financial Officer of Parent to the effect set forth in clauses (a) and (b) of this Section 7.2. (e) if Parent has made a Stock Election, the Company shall have received an opinion of counsel, based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others, dated as of the Closing Date, to the effect that, commencing with its inception Parent was organized in conformity with the requirements for qualification and taxation as a REIT under the Code, and its method of operation has enabled it to meet, and Parent has met, through the Closing Date, the requirements for qualification and taxation as a REIT under the Code and Parent's proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; provided that, if this condition cannot be satisfied before the Termination Date and Parent has made a Stock Election, such Stock Election shall be deemed to have been revoked and only Cash Consideration shall be paid in the Merger. Section 7.3 Conditions to Obligations of Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub to Effect the Merger. The obligations of Parent, Merger Sub, CTOP Merger Sub and Pinecreek Merger Sub to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) The representations and warranties of the Company, CTOP and Pinecreek OP contained in (i) Section 3.2(Authorization; Validity and Effect of Agreement); Section 3.3(Capitalization), Section 3.12(f) (Severance), Section 3.17(Opinion of Financial Advisor), Section 3.18(Brokers), Section 3.19(Vote Required), Section 3.21(Takeover Provisions Inapplicable) and Section 3.22(Affiliate Transactions) of this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct in all material respects as of the specified date) and (ii) in all other sections of Article III of this Agreement shall be true and correct (without regard to any materiality or Company Material Adverse Effect qualifier contained therein), on and as of the date hereof and on and as of the Closing Date as if made at and as of the Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct as of the specified date), except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (b) The Company shall have performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by them at or prior to the Closing Date. (c) Parent shall have received a certificate executed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company to the effect set forth in clauses (a) and (b) of this Section 7.3. (d) There shall not be instituted, pending or threatened any Action by a Governmental Entity as a result of this Agreement or any of the transactions contemplated herein which would reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect (assuming for purposes of this Section 7.3(d) that the Merger shall have occurred). (e) Parent shall have received the opinion of Xxxxxx & Xxxxxxx in the form attached as Exhibit A (based upon customary representations including those contained in this Agreement or in certificates of officers of the Parties and others), dated as of the Closing Date.