Common use of CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT Clause in Contracts

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law): (a) (i) the representations and warranties of the Company contained in Section 4.1 (Organization and Good Standing), Section 4.2 (Authorization of Agreement), Section 4.4(a) (Capitalization) and Section 4.21 (Financial Advisors) shall be true and correct (subject, solely in the case of Section 4.4(a), to de minimis exceptions) as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date); and (ii) the other representations and warranties of the Company contained in Article IV, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect; and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing clauses (i) and (ii); (b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing (other than Section 6.13 (“FIRPTA”), a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.7); and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; (c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining, or otherwise prohibiting or preventing the consummation of the Merger or the transactions contemplated hereby; (d) (i) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted, (ii) approvals of under the EUMR shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies listed on Schedule 7.1(d), in respect of the Antitrust Laws referenced on Schedule 7.1(d), shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iv) CFIUS Clearance shall have been obtained; and (e) the Stockholders Consent shall be in full force and effect and shall have been delivered no later than twenty-four (24) hours after the execution and delivery of this Agreement.

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations obligation of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law): (a) (i) the representations and warranties of the Company contained in Section 4.1 (Organization and Good Standing), Section 4.2 (Authorization of this Agreement), Section 4.4(a) (Capitalization) and Section 4.21 (Financial Advisors) shall be true and correct (subject, solely in the case of Section 4.4(a), to de minimis exceptions) as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date); and (ii) the other representations and warranties of the Company contained in Article IV, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except (x) for changes permitted by this Agreement or (y) where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect; and . Parent shall have received a certificate signed on behalf of the Company by an authorized officer of the Company, confirming the foregoing clauses (i) and (ii)Company to such effect; (b) the Company shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it at on or prior to the Closing (other than Section 6.13 (“FIRPTA”)Date, a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.7); and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; (c) the parties shall have executed and deliver the Transaction Documents; (d) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining, enjoining or otherwise prohibiting or preventing the consummation of the Merger or the transactions contemplated hereby; (de) (i) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act Parent’s counsel shall have expired approved the provisions contained in Article II and its sub-parts, which approval will not be unreasonably withheld or early termination shall have been granted, (ii) approvals of under the EUMR shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies listed on Schedule 7.1(d), in respect of the Antitrust Laws referenced on Schedule 7.1(d), shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iv) CFIUS Clearance shall have been obtaineddelayed; and (ef) the Stockholders Consent shall be in full force and effect and parties shall have been delivered no later than twenty-four (24) hours after the execution finalized and delivery of this Agreementmutually agreed upon all Schedules and Exhibits hereto.

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations obligation of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law): (a) (i) the representations and warranties of Sxxxxxx Company, the Company contained and Opco set forth in Section 4.1 this Agreement (Organization and Good Standing), Section 4.2 (Authorization of Agreement), Section 4.4(a) (Capitalization) and Section 4.21 (Financial Advisorswithout giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) shall be true and correct (subject, solely in the case of Section 4.4(a), to de minimis exceptions) as of the Closing Date as if made on at and as of the Closing Date Date, (or, if given as of a specific date, at and as of except to the extent such date); and (ii) the other representations and warranties of the Company contained expressly relate to an earlier date in Article IV, disregarding all qualifications which case such representations and exceptions contained therein relating to materiality or Material Adverse Effect, warranties shall be true and correct as of the Closing Date as if made on and as of such earlier date) except for any failures of the Closing Date (or, if given as of a specific date, at and as of such date), except where the failure of such representations and or warranties to be so true and correct would that, taken together, do not have result in or constitute a Company Material Adverse Effect; , and Parent shall have received a certificate signed by an authorized a senior executive officer of the Company, confirming dated the Closing Date, to the foregoing clauses (i) and (ii)effect; (b) the Company Debtors shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it at or the Debtors prior to the Closing (other than Section 6.13 (“FIRPTA”), a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.7); Date and Parent shall have received a certificate signed by an authorized a senior executive officer of the Company, confirming dated the foregoingClosing Date, to the forgoing effect; (c) there the Company, on behalf of the Debtors, shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoininghave delivered, or otherwise prohibiting or preventing the consummation caused to be delivered, to Parent all of the Merger or the transactions contemplated herebyitems set forth in Section 3.2; (d) the Debtors shall have obtained the consent or approval of each Person whose consent or approval shall be required under each Contract listed on Schedule 8.1(d), except where any failure to obtain such consent or approval do not have a Company Material Adverse Effect; (e) all agreements listed on Schedule 8.1(e) between Sxxxxxx Company, the Company or its Subsidiaries, on the one hand, and its Affiliates (other than wholly owned Subsidiaries of the Company), on the other hand, shall be terminated and fully discharged; (f) the Company and its Subsidiaries shall have no Indebtedness outstanding as of the Closing Date after giving effect to the transactions contemplated hereby other than (i) the waiting period Exit Facilities, (ii) the Indebtedness as set forth on Schedule 8.1(f) and (iii) Other Indebtedness not to exceed $1 million in the aggregate, and Parent shall have received a certificate signed by the chief financial officer of the Company and Opco, dated the Closing Date, to the forgoing effect and identifying each item of Other Indebtedness; (g) the Plan shall be effective, the Bankruptcy Court shall have entered a Confirmation Order and such order shall not have been stayed, no executory contracts or unexpired leases shall have been rejected except as permitted hereby, the Purchaser Entities shall have received that portion of the proceeds of the financing arrangements contemplated by the Plan and the Exit Financing Commitments or other Financing Agreement (other than a failure to receive proceeds as a result of a breach by an Affiliated Note Purchaser to fund its commitment in accordance with the terms and conditions of the Exit Financing Commitments) on terms and conditions, taken as a whole, no less favorable in the aggregate to the Purchaser Entities than those contained in the Exit Financing Commitments (taking into account any “flex” provisions contained therein, any breakage or liquidated damage payments, and all related fees, expenses and amounts payable to the Credit Parties), and there shall have been no amendment to the Plan, the Plan Sponsor Order or the Confirmation Order except as permitted hereby; (h) (i) the total amount of Restructuring Expenses that the Purchaser and the Company mutually, reasonably and in good faith believe (or, in the absence of any such mutual agreement, that the Bankruptcy Court determines) may be incurred by the Company (including Restructuring Expenses incurred prior to, on and after the Closing Date), does not exceed $57,125,000; and (ii) Deloitte & Touche LLP (“Deloitte”) and Ernst & Young LLP, in following good faith consultation with each other, shall have reasonably concluded based on the methodology of the Deloitte presentation titled “Bedding Superholdco, Inc. – Proposed Restructuring Transaction,” dated September 15, 2009, as updated for subsequent changes in financial information supplied by the Debtors or applicable to law, that none of the Company or any of its subsidiaries shall have any liability under Treasury Regulation 1502-6 or any other similar rule of state, local or foreign law arising as a result of the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted, (ii) approvals in excess of under the EUMR shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies listed on Schedule 7.1(d), in respect of the Antitrust Laws referenced on Schedule 7.1(d), shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iv) CFIUS Clearance shall have been obtained$2,500,000; and (ei) the Stockholders Consent shall be in full force and effect and no Company Material Adverse Effect shall have been delivered no later than twenty-four (24) hours after the execution occurred and delivery of this Agreementbe continuing.

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfactionfulfillment, on or prior to or on the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law): (a) (i) the representations and warranties of the Company contained Purchaser set forth in Section 4.1 (Organization this Agreement qualified as to materiality shall be true and Good Standing)correct, Section 4.2 (Authorization of Agreement), Section 4.4(a) (Capitalization) and Section 4.21 (Financial Advisors) those not so qualified shall be true and correct (subjectin all material respects, solely in the case of Section 4.4(a), to de minimis exceptions) at and as of the Closing Date as if though made on and as of the Closing Date (orDate, if given as of a specific date, at and as of except to the extent such date); and (ii) the other representations and warranties of the Company contained relate to an earlier date (in Article IV, disregarding all qualifications which case such representations and exceptions contained therein relating warranties qualified as to materiality or Material Adverse Effectshall be true and correct, and those not so qualified shall be true and correct as of the Closing Date as if made in all material respects, on and as of the Closing Date (or, if given as of a specific date, at and as of such earlier date), except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect; and Parent shall have received a certificate signed by an authorized officer of Purchaser, dated the CompanyClosing Date, confirming to the foregoing clauses (i) and (ii)effect; (b) the Company Purchaser shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it at Purchaser on or prior to the Closing (other than Section 6.13 (“FIRPTA”)Date, a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.7); and Parent shall have received a certificate signed by an authorized officer of Purchaser, dated the CompanyClosing Date, confirming to the foregoing;foregoing effect; and (c) there Purchaser shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoininghave delivered, or otherwise prohibiting or preventing the consummation caused to be delivered, to Parent all of the Merger or the transactions contemplated hereby; (d) (i) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted, (ii) approvals of under the EUMR shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies listed on Schedule 7.1(d), items set forth in respect of the Antitrust Laws referenced on Schedule 7.1(d), shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iv) CFIUS Clearance shall have been obtained; and (e) the Stockholders Consent shall be in full force and effect and shall have been delivered no later than twenty-four (24) hours after the execution and delivery of this AgreementSection 4.3.

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law): (a) (i) the representations and warranties of the Company contained in Section 4.1 (Organization and Good Standing), Section 4.2 (Authorization of Agreement), Section 4.4(a) (Capitalization) Article V and Section 4.21 11.11 (Financial Advisors) shall be true other than those in Sections 5.2 and correct 5.4 (subjectcollectively, solely in the case of Section 4.4(a“Excluded Representations”), to de minimis exceptions) as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date); and (ii) the other representations and warranties of the Company contained in Article IV, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date as if made on date of this Agreement and as of the Closing Date as if made as of the Closing (or, if given except for such representations and warranties that speak as of a specific date, at which shall be true and correct as of such date), except where to the extent that the failure of such representations and warranties to be true and correct correct, individually or in the aggregate, has not had or would not reasonably be expected to have a Material Adverse Effect, and (ii) the Excluded Representations shall be true and correct in all respects as of the date of this Agreement and as of the Closing; and Parent shall have received a certificate signed on behalf of the Company by an authorized officer of the Company, confirming the foregoing clauses (i) and (ii)Company to such effect; (b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing (other than Section 6.13 (“FIRPTA”)Closing, a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.7); and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; (c) there shall not be in effect no Order of any Order by a Governmental Body of competent jurisdiction restrainingshall be in effect or pending, enjoiningand no Law shall have been enacted, adopted, or pending, that restrains, enjoins, makes illegal or otherwise prohibiting or preventing prohibits the consummation of the Merger or transactions contemplated by this Agreement and no Legal Proceedings by any Governmental Body with respect to the transactions contemplated herebyby this Agreement shall be pending that seek to enjoin, restrain, make illegal or otherwise prohibit the transactions contemplated by this Agreement; (d) (i) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted, (ii) approvals of under the EUMR shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies listed on Schedule 7.1(d), in respect of the Antitrust Laws referenced on Schedule 7.1(d), shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iv) CFIUS Clearance shall have been obtained; and; (e) the Stockholders Consent Company shall have delivered, or caused to be delivered, to Parent pay-off letters evidencing the repayment of the Indebtedness under the Credit Agreement pursuant to Section 3.3(a), together with documents evidencing the release of all Liens relating thereto; (f) the Company shall have delivered to Parent on the Closing Date (i) a certification from the Company, signed by an authorized officer of the Company, that the Company is not, and has not been at any time during the five years preceding the date of such certification, a United States real property holding company, as defined in Section 897(c)(2) of the Code, such certification in form and substance reasonably satisfactory to Parent and conforming to the requirements of Treasury Regulations Section 1.1445-2(c)(3) and 1.897-2(h), and (ii) proof that the Company has provided notice of such certification to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2); (g) the Company shall have received affirmative tenders and acceptances of payment for not less than 50.1% of the aggregate principal amount of each of the outstanding Subordinated Notes and the outstanding Company Notes pursuant to the Tender Offers; (h) the Management Termination Agreement shall be in full force and effect; (i) the Contribution Agreement shall be in full force and effect and immediately prior to the Closing the Contributors shall have been delivered fulfilled all of their Obligations thereunder including contributing the Contributed Shares to Holdco; and (j) no later than twenty-four (24) hours after Event shall have occurred since the execution and delivery date of this AgreementAgreement that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law): (a) (i) the representations and warranties of the Company contained in Section 4.1 (Organization and Good Standing), Section 4.2 (Authorization of Agreement), Section 4.4(a) (Capitalization) and Section 4.21 (Financial Advisors) shall be true and correct (subject, solely in the case of Section 4.4(a), to de minimis exceptions) as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except for changes permitted by this Agreement; and (ii) the other representations and warranties of the Company contained in Article IV, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except (x) for changes permitted by this Agreement or (y) where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect; and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing clauses (i) and (ii); provided, that in the event Parent delivers a Cut-off Date Notice, such representations and warranties shall be true and correct, subject to the foregoing qualifications and limitations, as of the date of such Cut-off Date Notice and not the Closing Date; (b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing (other than Section 6.13 (“FIRPTA”), a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.73.6); and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; (c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining, or otherwise prohibiting or preventing the consummation of the Merger or the transactions contemplated hereby;; and (d) (i) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted, (ii) approvals of under the EUMR shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies consents listed on Schedule 7.1(d), in respect of the Antitrust Laws referenced on Schedule 7.1(d)applicable Laws, shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iviii) CFIUS Clearance shall have been obtained; and (e) the Stockholders Consent shall be in full force and effect and shall have been delivered no later than twenty-four (24) hours after the execution and delivery of this Agreementeffect.

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations of Parent Parent's obligation to effect the Merger and Merger Sub to consummate the other transactions contemplated by this Agreement are to occur in connection with the Closing and thereafter is subject to the satisfaction, on or prior to the Closing Date, satisfaction of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law):condition precedent listed below: (a) Each representation and warranty set forth in Section 2 shall have been accurate and complete in all material respects (i) except with respect to any provisions including the word "material" or words of similar import, and except with respect to materiality, as reflected under GAAP, in the representations in Section 2.5 relating to the Financial Statements, with respect to which such representations and warranties must have been accurate and complete) as of the Company contained date of this Agreement, and shall be accurate and complete in all material respects (except with respect to any provisions including the word "material" or words of similar import and except with respect to materiality, as reflected under GAAP, in the representations in Section 4.1 (Organization 3.5 relating to the Financial Statements, with respect to which such representations and Good Standing), Section 4.2 (Authorization of Agreement), Section 4.4(a) (Capitalization) warranties must have been accurate and Section 4.21 (Financial Advisors) shall be true and correct (subject, solely in the case of Section 4.4(a), to de minimis exceptionscomplete) as of the Closing Date Date, as if made on and as of the Closing Date (orDate, if given after giving full effect to any supplements to the schedules as of a specific date, at and amended from time to time so long as of such date); and (ii) the other representations and warranties of the Company contained in Article IV, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except where the failure of such representations and warranties to be true and correct would modification does not have constitute a Material Adverse Effect; . Parent and Parent Acquisition shall have received a certificate dated the Closing Date and signed by an authorized the chief executive officer or corporate secretary of Diomed substantially in the Companyform attached hereto as EXHIBIT F, confirming certifying that the foregoing clauses (iconditions specified in Section 7.2(a) and (ii);7.2(b) have been satisfied. (b) the Company Diomed shall have performed and complied in all material respects with all obligations, its covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing (other than Section 6.13 (“FIRPTA”), a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.7); and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing;Closing. (c) Since the date hereof there shall not be in effect any Order by a Governmental Body has been no event, series of competent jurisdiction restraining, enjoining, or otherwise prohibiting or preventing the consummation of the Merger events or the transactions contemplated hereby;lack of occurrence thereof which, singularly or in the aggregate, could reasonably be expected to have a Material Adverse Effect on the Acquired Entities. (d) (i) the waiting period applicable No action is pending or threatened by or before any governmental body, arbitrator, or mediator which seeks to restrain, prohibit, invalidate, or collect any damages arising out of the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted, (ii) approvals of under the EUMR shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies listed on Schedule 7.1(d), in respect of the Antitrust Laws referenced on Schedule 7.1(d), shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iv) CFIUS Clearance shall have been obtained; andAgreement. (e) the Stockholders Consent shall be in full force and effect and Counsel for Diomed shall have been delivered no later than twenty-four (24) hours after to Parent and Acquisition, legal opinions substantially in the execution form attached hereto as EXHIBIT G and delivery of this AgreementEXHIBIT H respectively.

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations obligation of the Parent and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by the Parent in whole or in part to the extent permitted by applicable Lawlaw): (a) (i) the all representations and warranties of the Company Target contained in Section 4.1 (Organization and Good Standing), Section 4.2 (Authorization of Agreement), Section 4.4(a) (Capitalization) and Section 4.21 (Financial Advisors) shall be true and correct (subject, solely in the case of Section 4.4(a), to de minimis exceptions) as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date); and (ii) the other representations and warranties of the Company contained in Article IV, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, herein shall be true and correct as of the Closing Date date hereof; (b) all representations and warranties of the Target contained herein qualified as if made on to materiality shall be true and correct, and the representations and warranties of the Target contained herein not qualified as to materiality shall be true and correct in all material respects, at and as of the Closing Date (or, if given with the same effect as of a specific date, though those representations and warranties had been made again at and as of such date), except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect; and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing clauses (i) and (ii)that time; (bc) the Company Target shall have performed and complied in all material respects with all obligations, obligations and covenants and agreements required by this Agreement to be performed or complied with by it at them on or prior to the Closing Date; (other than Section 6.13 (“FIRPTA”), a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.7); and d) the Parent shall have received a certificate signed been furnished with certificates (dated the Closing Date and in form and substance reasonably satisfactory to the Parent) executed by an authorized officer each Target certifying as to the fulfillment of the Companyconditions specified in Sections 7.1(a), confirming the foregoing7.1(b) and 7.1(c) hereof; (ce) the Parent shall have been furnished with duly authorized shareholder and Board of Director resolutions of Target and Abazias-DE authorizing the entry by Target and Abazias-DE into this Agreement; (f) Reserved; (g) The SEC shall have declared the S-4 effective. No stop order suspending the effectiveness of the S-4 or any part thereof shall have been issued and no proceeding for that purpose, and no similar proceeding in respect of the Joint Proxy Statement/Prospectus, shall have been initiated or threatened in writing by the SEC. (h) there shall not have been or occurred any Material Adverse Change; (i) the Target shall have obtained all consents and waivers referred to in Section 4.7 hereof, in a form reasonably satisfactory to the Parent, with respect to the transactions contemplated by this Agreement; (j) no legal proceedings shall have been instituted or threatened or claim or demand made against the Target or the Parent seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby, and there shall not be in effect any Order order by a Governmental Body governmental body of competent jurisdiction restraining, enjoining, enjoining or otherwise prohibiting or preventing the consummation of the Merger or the transactions contemplated hereby; (d) (ik) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act Parent shall have expired or early termination received the written resignations of each director of Abazias-DE, the Employment Agreements shall have been grantedexecuted by Parent, (ii) approvals of under the EUMR shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated Xxxxx Xxxxxxxxx and Xxxxx Xxxx and Consulting Agreement executed by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies listed on Schedule 7.1(d), in respect of the Antitrust Laws referenced on Schedule 7.1(d), shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iv) CFIUS Clearance shall have been obtained; and (e) the Stockholders Consent shall be in full force and effect and shall have been delivered no later than twenty-four (24) hours after the execution and delivery of this AgreementStrategic Capital Advisors.

CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement Transactions are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Lawlaw): (a) (i) the representations and warranties of the Company Group contained in Section 4.1 (Organization Article II and Good Standing), Section 4.2 (Authorization of Agreement), Section 4.4(a) (Capitalization) and Section 4.21 (Financial Advisors) the Stockholders contained in Article III that are qualified as to materiality shall be true and correct (subject, solely in the case of Section 4.4(a), to de minimis exceptions) all respects and those that are not qualified as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date); and (ii) the other representations and warranties of the Company contained in Article IV, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all material respects as of the Closing Date as if though made at and as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties that are qualified as to materiality shall be true and correct in all respects on and as of the Closing Date (or, if given such earlier date and those that are not qualified as of a specific date, at to materiality shall be true and correct in all material respects on and as of such earlier date), except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect; and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing clauses (i) and (ii); (b) the Company Group and the Stockholders shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by in this Agreement to be performed or complied with by it at or prior to the Closing (other than Section 6.13 (“FIRPTA”), a breach of which shall only permit Parent and Merger Sub to exercise their rights under Section 3.7); and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoingDate; (c) there shall not be in effect any Order award, judgment, decree or order by a Governmental Body Entity of competent jurisdiction restraining, enjoining, enjoining or otherwise prohibiting or preventing the consummation of the Merger Transactions, and there shall not be pending any proceeding seeking to restrain or prohibit the transactions contemplated herebyconsummation of the Mergers or seeking a material amount for damages in connection with the Transactions; (d) there shall be no Indebtedness of the Company Group outstanding other than the Existing Indebtedness; (e) there shall not have occurred any Material Adverse Effect with respect to the Company Group since the date of this Agreement; (f) the parties shall be in receipt of the third party consents set forth on Schedule 1.3(g)(ix); (g) Parent shall have received a certificate signed by the Chief Executive Officer of each member of the Company Group, in form and substance reasonably satisfactory to Parent, dated the Closing Date, to the effect that each of the conditions specified above in Sections 6.1(a), (b) and (c) have been satisfied in all respects; (h) Parent shall have received an executed copy of the new lease acceptable to Parent for the premises located at 0000 Xxxxxxx Xxxxxxxxxx Court, Marietta, Georgia, 30066, between Value Lighting and Aldean Properties, LLC, providing for a rent on a triple net basis equal to Twenty-Five Thousand Dollars ($25,000) per month; (i) Parent shall have received copies of all other documents, opinions, certificates and instruments required to be delivered at the waiting period applicable Closing pursuant to Section 1.3(h) and all other documents, opinions, certificates and instruments reasonably requested by Parent, with respect to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted, (ii) approvals of under the EUMR shall have been obtained or any mandatory waiting periods applicable Transactions in form and substance satisfactory to the transactions contemplated by this Agreement under the EUMR shall have expired or been otherwise terminated, (iii) the approvals of the applicable Governmental Bodies listed on Schedule 7.1(d), Parent in respect of the Antitrust Laws referenced on Schedule 7.1(d), shall have been obtained or any mandatory waiting periods applicable to the transactions contemplated by this Agreement under such Antitrust Laws shall have expired or been otherwise terminated, and (iv) CFIUS Clearance shall have been obtainedits reasonable discretion; and (ej) Parent shall have received the Stockholders Consent Company Group’s audited financial statements as of and for the years ended December 31, 2012 and 2013, together with the required report and consent specified in Section 5.3. (k) Value Houston shall be in full force and effect and a wholly-owned subsidiary of Value Lighting or AL Enterprises or the parties shall have been delivered no later than twenty-four (24) hours after amended this Agreement to provide for the execution merger of Value Houston with and delivery of this Agreementinto Merger Sub.