Common use of Conditions to Consummation of Merger Clause in Contracts

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's Obligations. The respective obligations of each Party to consummate the Merger are subject to the satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company Stockholders; (b) the Buyer and the Company shall be satisfied that the issuances of Buyer Common Stock in the transaction shall be exempt under Section 4(2) of the Securities Act; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger or limiting or restricting the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger shall have been issued, nor shall any proceeding brought by any Governmental Entity, seeking any of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegal; (d) the Buyer shall have received all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shares; (e) the Company, the Buyer, the Escrow Agent and the Stockholders' Agent (as defined in Article VII hereto) shall have entered into the Escrow Agreement; and (f) the Buyer and the Company shall each have received the written opinion of their respective counsel in form reasonably satisfactory to each of the opposing counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related thereto.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's Obligations. The respective obligations of each Party to consummate the Merger are subject to the satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company StockholdersApproval; (b) the Buyer Registration Statement shall have become effective in accordance with the provisions of the Securities Act and applicable state securities laws, and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC or any state and remain in effect; and (c) the Merger Shares shall have been authorized for listing on the Nasdaq National Market. 5.2 Conditions to Obligations of the Parent and the Acquisition Subsidiary. The obligation of each of the Parent and Acquisition Subsidiary to consummate the Merger is subject to the satisfaction of or waiver by the Parent and the Acquisition Subsidiary of the following additional conditions: (a) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all registrations, filings and notices the failure of which to obtain would result in a Company Material Adverse Effect; (b) the representations and warranties of the Company set forth in Article II shall be satisfied that true and correct in all material respects when made on the issuances date hereof and shall be true and correct in all material respects as of Buyer Common Stock the Effective Time as if made as of the Effective Time, except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date and except if such inaccuracies individually or in the transaction shall be exempt under Section 4(2) of the Securities Actaggregate do not cause a Company Material Adverse Effect; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger or limiting or restricting the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger Company shall have been issued, nor shall any proceeding brought by any Governmental Entity, seeking any performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable prior to the Merger which makes the consummation of the Merger illegalEffective Time; (d) the Buyer Company shall have received all permits delivered to the Parent and other authorizations required under applicable state securities laws for the issuance Acquisition Subsidiary a certificate of its Chairman, President or Chief Financial Officer to the effect that each of the Merger Sharesconditions specified in clause (a) of Section 5.1 and clauses (a) through (c) of this Section 5.2 is satisfied; (e) the Parent and the Acquisition Subsidiary shall have received from Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C., counsel to the Company, an opinion with respect to the Buyermatters set forth in Exhibit D attached hereto, addressed to the Parent and the Acquisition Subsidiary and dated as of the Closing Date; (f) of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect materially and adversely the right of the Parent to own, operate or control any of the assets and operations of the Surviving Corporation following the Merger, and no such judgment, order, decree, stipulation or injunction shall be in effect; provided, however, that the Parent shall contest or cooperate with the Company in contesting, as applicable, the Escrow Agent action, suit or proceeding and if any injunction or order has been so issued will use reasonable efforts to have it dismissed; (g) the Stockholders' Agent number of shares of Company Stock held by Dissenting Stockholders shall not exceed 7% of the issued and outstanding Company Shares; (as defined in Article VII heretoh) all vested or exercisable Options and Warrants that have an exercise price per share greater than the Per Share Dollar Value shall have entered into been amended, to the Escrow Agreementextent necessary, such that they may be terminated in accordance with Section 1.9(a) hereof; and (fi) from the Buyer and the Company shall each have received the written opinion date of their respective counsel in form reasonably satisfactory to each of the opposing counsel this Agreement to the effect that the Merger will be treated for federal income tax purposes as Effective Time, there shall not have been any event or development which results in a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinionsCompany Material Adverse Effect, counsel may rely on reasonable assumptions and may also rely on (and nor shall there xxxx occurred any event or development which is reasonably likely to the extent reasonably required, the parties and result in a Company Stockholders shall make) reasonable representations related theretoMaterial Adverse Effect.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's Obligations. The respective obligations of -------------------------------------- each Party to consummate the Merger are subject to the satisfaction of the following conditions: (a) (i) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company StockholdersStockholders and (ii) the issuance of the Merger Shares shall have received the approval of the stockholders of the Buyer; (b) all applicable waiting periods (and any extensions thereof) under the Buyer and the Company Xxxx-Xxxxx-Xxxxxx Act shall be satisfied that the issuances of Buyer Common Stock in the transaction shall be exempt under Section 4(2) of the Securities Acthave expired or otherwise been terminated; (c) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no temporary restraining stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and remain in effect; (i) no action, suit or proceeding shall be pending or threatened by any Governmental Entity wherein an unfavorable judgment, order, preliminary decree, stipulation or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the would (a) prevent consummation of the Merger or limiting or restricting the Buyer's conduct or operation any of the business transactions contemplated by this Agreement, (b) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (c) affect adversely the right of the Buyer to own, operate or control any of the assets and operations of the Surviving Corporation after and the Merger Subsidiaries following the Merger, and no such judgment, order, decree, stipulation or injunction shall have been issuedbe in effect, nor (ii) no action, suit or proceeding shall any proceeding brought by be pending or threatened before any Governmental Entity, seeking or before any arbitrator pursuant to an agreement to arbitrate, by any party other than a Governmental Entity in which it is reasonably likely that an unfavorable judgment, order, decree, stipulation or injunction would result and in which such judgment, order, decree, stipulation or injunction would (a) prevent consummation of any of the foregoing be pending; nor shall there be transactions contemplated by this Agreement, (b) cause any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegal; transactions contemplated by this Agreement to be rescinded following consummation or (dc) affect adversely the right of the Buyer shall have received all permits and other authorizations required under applicable state securities laws for the issuance to own, operate or control any of the Merger Shares;assets and operations of the Surviving Corporation and the Subsidiaries following the Merger, and no such judgment, order, decree, stipulation or injunction shall be in effect; and (e) the Company, the Buyer, the Escrow Agent and the Stockholders' Agent (as defined in Article VII hereto) Merger Shares shall have entered into been authorized for listing on the Escrow Agreement; and (f) the Buyer and the Company shall each have received the written opinion Nasdaq National Market upon official notice of their respective counsel in form reasonably satisfactory to each of the opposing counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoissuance.

Conditions to Consummation of Merger. 5.1 6.1 Conditions to Each Party's ’s Obligations. The respective obligations of each Party to consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction of the following conditionsconditions unless any such condition is waived, in writing, by the other Party: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company StockholdersTarget Member Approval; (b) the Buyer Company and the Company Target shall be satisfied that the issuances of Buyer Common Company Stock in the transaction shall be exempt under Regulation D of the Securities Act and Section 4(2) of the Securities Act; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger or limiting or restricting the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger shall have been issued, nor shall any proceeding brought by any Governmental Entity, seeking any of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegal;; and (d) no proceeding in which the Buyer Company and the Target shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have received all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shares; (e) the Company, the Buyer, the Escrow Agent and the Stockholders' Agent (as defined in Article VII hereto) shall have entered into the Escrow Agreement; and (f) the Buyer and been brought or be pending by or against the Company shall each have received or the written opinion of their respective counsel in form reasonably satisfactory to each of the opposing counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoTarget under any United States or state bankruptcy or insolvency law.

Conditions to Consummation of Merger. 5.1 5.01 Conditions to Each Party's Obligations. The respective obligations of each Party party to consummate effect the Merger transactions contemplated hereby are subject to the satisfaction fulfillment or waiver at or prior to the Effective Date of the following conditions: (a) this Agreement and the Merger There shall have received been no law, statute, rule or regulation, domestic or foreign, enacted or promulgated which would prohibit or make illegal the Requisite Stockholder Approval by consummation of the Company Stockholders;transactions contemplated hereby. (b) This Agreement and all of the transactions contemplated hereby shall have been duly authorized by the Boards of Directors of the Company, the Buyer and Merger Sub. The Merger and this Agreement shall have been approved by the Shareholders of the Company shall be satisfied that as required at the issuances of Buyer Common Stock in the transaction shall be exempt under Section 4(2) of the Securities Act;Special Meeting. (c) no temporary restraining orderThere shall not be threatened, preliminary instituted or permanent injunction pending any Action or other order issued by proceeding before any court of competent jurisdiction or other legal governmental authority or regulatory restraint agency (i) challenging or prohibition preventing seeking to make illegal, or to delay or otherwise directly or indirectly restrain or prohibit, the consummation of the Merger transactions contemplated hereby or limiting seeking to obtain material damages in connection with such transactions, (ii) seeking to prohibit direct or restricting the Buyer's conduct indirect ownership or operation by the Buyer or Merger Sub of all or a material portion of the business or assets of the Company, or to compel the Buyer or Merger Sub or any of their respective subsidiaries or the Company to dispose of or to hold separately all or a material portion of the business or assets of the Buyer or of the Surviving Corporation after Company, as a result of the Merger shall have been issuedtransactions contemplated hereby, nor shall (iii) seeking to invalidate or render unenforceable any proceeding brought by any Governmental Entity, seeking material provision of this Agreement or any of the foregoing be pending; nor other agreements attached as exhibits hereto or contemplated hereby or (iv) otherwise relating to and having a Material Adverse Effect upon the transactions contemplated hereby. (d) There shall there not be any action taken, or any statute, rule, regulation regulation, judgment, order or order injunction contemplated, enacted, entered, enforced enforced, promulgated, issued or deemed applicable to the Merger which makes transactions contemplated hereby, by any federal, state or other court, government or governmental authority or agency, that would reasonably be expected to result, directly or indirectly, in any of the consummation consequences referred to in Section 4.01(c). (e) There shall be available exemptions from the registration requirements of the Securities Act and all applicable blue sky laws for the offer and issuance of the Merger illegal;Shares pursuant to the Merger. (df) The Board of Directors of the Buyer shall have received all permits and other authorizations required under applicable state securities laws for approved of the issuance by the Buyer to the order and direction of the Shareholders of the Company of the Merger Shares, the Loan Shares and the Shares for Debt, and, in addition, such Board of Directors having also approved and received any required notice of: (i) the Loan by the Buyer and/or Lenders to the Company of not less than the Principal Sum of $300,000; (eii) the issuance by the Buyer to the Company's Creditors of the Shares For Debt, if any; (iii) the change in board of directors and officers of the Buyer; (iv) the Private Placement, the Escrow Agent and the Stockholders' Agent (as defined in Article VII hereto) shall have entered into the Escrow Agreementif any; and (fv) such other matters as may be agreed to as between the Buyer and parties hereto prior the Company shall each have received the written opinion of their respective counsel in form reasonably satisfactory to each completion of the opposing counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretotransactions contemplated by this Agreement.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's ObligationsCONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective obligations of each Party to consummate the Merger are subject to the satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Shareholder Approval by the Company StockholdersShareholders; (b) the Buyer and the Company shall be satisfied that the issuances of Buyer Common Stock in the transaction shall be exempt under Section 4(2) of the Securities Act; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger or limiting or restricting the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger shall have been issued, nor shall any proceeding brought by any Governmental Entity, seeking any of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegal; (dc) the Buyer shall have received all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shares;; and (ed) the Company, the Buyer, the Escrow Agent and the StockholdersShareholders' Agent (as defined in Article VII hereto) shall have entered into the Escrow Agreement; and (f) the Buyer and the Company shall each have received the written opinion of their respective counsel in form reasonably satisfactory to each of the opposing counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related thereto.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's Obligations. The respective obligations of each Party to consummate the Merger are subject to the satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company StockholdersShareholder Approval; (b) all applicable waiting periods (and any extensions thereof) under the Buyer and HSR Act relating to the Company Merger shall be satisfied that the issuances of Buyer Common Stock in the transaction shall be exempt under Section 4(2) of the Securities Acthave expired or otherwise been terminated; (c) the California Department of Corporations shall have approved the Section 3(a)(10) Applications and issued a permit qualifying the Merger Shares pursuant to Section 25113 of the California Corporate Securities Law of 1968, as amended, or the Form S-4 of Engage shall have been declared effective by the SEC and there shall not be in effect any stop order suspending the effectiveness of the permits or the Form S-4 or any proceedings seeking such a stop order; (d) all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any governmental or regulatory authority or agency (all of the foregoing being referred to as "Consents") which are necessary for the consummation of the Merger, other than those specified in Section 5.1(b) and (c), shall have been filed, occurred or been obtained (all such authorizations, orders, declarations, approvals, filings and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect; and (e) no temporary restraining order, preliminary or permanent injunction injunction, or other order issued by any court of competent jurisdiction or other legal or regulatory restraint restraints or prohibition preventing the consummation of the Merger or materially limiting or restricting the BuyerEngage's conduct or operation of the business of the Buyer Engage or the Surviving Corporation Company after the Merger Closing Date shall have been issued, nor shall any proceeding proceedings brought by any Governmental Entity, Entity seeking any of the foregoing be pending; , nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes would affect the consummation effectiveness of the Merger illegal; (d) the Buyer shall have received all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shares; (e) the Company, the Buyer, the Escrow Agent and the Stockholders' Agent (as defined in Article VII hereto) shall have entered into the Escrow Agreement; and (f) the Buyer and the Company shall each have received the written opinion of their respective counsel in form reasonably satisfactory to each of the opposing counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoMerger.

Conditions to Consummation of Merger. 5.1 SECTION 7.01 Conditions to Each Party's ObligationsObligation to Effect the Merger. The respective obligations of each Party party to consummate effect the Merger are subject to the satisfaction or waiver, at or prior to the Effective Time, of the following conditions: (a) this Agreement shall have been approved and adopted by the affirmative vote of the stockholders of the Company to the extent required by applicable law and the Merger shall have received Certificate of Incorporation of the Requisite Stockholder Approval by the Company StockholdersCompany; (b) no statute, rule, regulation, decree, order or injunction shall have been promulgated, enacted, entered or enforced by any United States federal or state government, governmental agency or authority or court which remains in effect and prohibits, restrains, enjoins or restricts the Buyer and the Company shall be satisfied that the issuances of Buyer Common Stock in the transaction shall be exempt under Section 4(2) consummation of the Securities ActMerger; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing waiting period applicable to the consummation of the Merger or limiting or restricting under the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger HSR Act shall have expired or been issued, nor shall any proceeding brought by any Governmental Entity, seeking any of the foregoing be pendingterminated; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegal;and (d) this Agreement shall have been approved and adopted by the Buyer affirmative vote of the stockholders of Purchaser to the extent required by applicable law and the Certificate of Incorporation of Purchaser; SECTION 7.02 Conditions to Obligations of Purchaser and Sub to Effect the Merger. The obligation of Purchaser and Sub to effect the Merger are further subject to the satisfaction, at or prior to the Effective Time, of the conditions that (i) Purchaser and Sub shall have received all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shares; (e) a certificate from the Company, signed by the Buyerchief executive officer of the Company, stating that the Escrow Agent representations and warranties of the Stockholders' Agent (as defined Company set forth in Article VII heretoIV are true and correct at and as of the Effective Time, and (ii) shall have entered into the Escrow Agreement; and (f) the Buyer and the Company shall each have received the written opinion of their respective counsel performed in form reasonably satisfactory to all material respects each of the opposing counsel its obligations under this Agreement required to be performed by it at or prior to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and Effective Time pursuant to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoterms hereof.

Conditions to Consummation of Merger. 5.1 6.1 Conditions to Each Party's ObligationsObligations To Effect the Merger. The respective obligations of each Party to consummate effect the Merger are shall be subject to the satisfaction continued fulfillment, or waiver by all such Parties, at the Effective Time, of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval been adopted and approved by the affirmative vote or written consent of the holders of the requisite number of shares of capital stock of the Company Stockholdersin accordance with the Company's Certificate of Incorporation and the DGCL; (b) each of the Buyer Company, Buyer, Merger Sub and any other person (as defined in the HSR Act and the Company shall be satisfied that rules and regulations thereunder) required in connection with the issuances Merger to file a Notification and Report Form for Certain Mergers and Acquisitions with the Department of Buyer Common Stock in Justice and the transaction shall be exempt under Section 4(2) Federal Trade Commission pursuant to Title II of the Securities ActHSR Act shall have made such filing and the applicable waiting period with respect to each such filing (including any extension thereof by reason of a request for additional information) shall have expired or been terminated; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger transactions contemplated herein or limiting or restricting Buyer's or the BuyerCompany's conduct or operation of the its business of the Buyer or the Surviving Corporation after the Merger transactions contemplated herein shall have been issued, nor shall any proceeding brought by any Governmental Entity, Entity seeking any of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger transactions contemplated herein which makes the consummation of the Merger transactions contemplated herein illegal; (d) the Buyer shall have received all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shares; (e) the Company, the Buyer, the Shareholders Representative and a Qualifying Escrow Agent and the Stockholders' Agent (as defined in Article VII hereto) shall have entered into the Escrow Agreement; and (fe) the Surviving Corporation and Xxxxx X. Xxxxx shall have entered into an employment agreement, satisfactory in form and substance to the Buyer and Xxxxx X. Xxxxx, providing for limitations on his ability to compete with the Company shall each have received the written opinion Surviving Corporation and such other provisions as are set forth in a term sheet of their respective counsel in form reasonably satisfactory to each of the opposing counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Codeeven date herewith executed by Xx. In preparing the tax opinions, counsel may rely on reasonable assumptions Xxxxx and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoBuyer.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's ’s Obligations. The respective obligations of each Party to consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction of the following conditionsconditions unless any such condition is waived, in writing, by the other Party: (a) this Agreement Pubco shall have received, on or before the Closing Date, the Private Placement Documents, in connection with the Private Placement, executed by investors identified therein, including the Lead Investor (as such term is defined in the Securities Purchase Agreement), along with good and cleared funds, in escrow, representing subscriptions in an aggregate amount of at least $1,500,000, the closing of which shall be subject only to the Closing of the Merger, and the Merger initial closing of the Private Placement shall have received be held immediately after the Requisite Stockholder Approval by Closing of the Company StockholdersMerger; (b) Pubco shall have received, on or before the Buyer Closing Date, all documents relating to the Xxxxxxx Repurchase (as such term is defined in the Securities Purchase Agreement), executed by Xxxxxxx Timber Company LLC; (c) Pubco, Merger Sub and the Company shall be satisfied that the issuances of Buyer Common Stock the Merger Shares in the transaction shall be exempt from registration with the Commission under Regulation D of the Securities Act and Section 4(2) of the Securities Act; (cd) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger or limiting or restricting the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger shall have been issued, nor shall any proceeding brought by any Governmental EntityBody, seeking any of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order Order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegal; (d) the Buyer shall have received all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shares;; and (e) no proceeding in which the Company, the BuyerPubco or Merger Sub shall be a debtor, the Escrow Agent and the Stockholders' Agent (as defined in Article VII hereto) defendant or party seeking an Order for its own relief or reorganization shall have entered into been brought or be pending by or against the Escrow Agreement; and (f) the Buyer and the Company shall each have received the written opinion of their respective counsel in form reasonably satisfactory to each of the opposing counsel to the effect that the Company, Pubco or Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoSub under any United States or state bankruptcy or insolvency law.

Conditions to Consummation of Merger. Section 5.1 Conditions to Each Party's ObligationsObligation. The respective obligations of each Party the Parent, the Transitory Subsidiary and the Company to consummate the Merger are shall be subject to satisfaction at or prior to the satisfaction Effective Time of each of the following conditions, any of which may be waived in whole or in part by the Parent, the Transitory Subsidiary or the Company, as the case may be, to the extent permitted by applicable law: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company Stockholdersshall have been obtained; (b) no Governmental Entity (including a federal or state court) of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which materially restricts, prevents or prohibits consummation of the Buyer Merger or any transaction contemplated by this Agreement; and (c) any waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated, and no action shall have been instituted by the Department of Justice or Federal Trade Commission challenging or seeking to enjoin the consummation of this transaction, which action shall have not been withdrawn or terminated. Section 5.2 Conditions to Obligations of the Parent and the Transitory Subsidiary. The obligation of each of the Parent and the Transitory Subsidiary to consummate the Merger shall be subject to satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived in whole or in part by Parent and the Transitory Subsidiary to the extent permitted by applicable law: (a) the Parent, Transitory Subsidiary and the Company shall be satisfied have obtained all required Approvals of Governmental Entities and of third parties and effected all required registrations, filings and notices necessary to consummate the Merger (including to enable the Surviving Corporation to conduct its business and to own or lease its properties and assets in substantially the same manner in which such business was previously conducted and such assets and properties were previously owned or leased), except where the failure to obtain any such Approval or effect any such registration, filing or notice would not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; (b) each of the representations and warranties of the Company contained in this Agreement that the issuances are qualified as to materiality or Material Adverse Effect (or any variation of Buyer Common Stock in the transaction such terms) shall be exempt under Section 4(2) true and correct in all respects, and each of the Securities Actrepresentations and warranties that are not so qualified shall be true and correct in all material respects, in each case on the date hereof and as of the Closing Date as if made as of the Closing Date, except for representations and warranties made as of a specific date, which shall be true and correct as of such date; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger or limiting or restricting the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger Company shall have been issued, nor performed or complied with its covenants set forth in Section 4.3 and shall any proceeding brought by any Governmental Entity, seeking any have performed or complied in all material respects with its other agreements and covenants required to be performed or complied with under this Agreement as of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable prior to the Merger which makes the consummation of the Merger illegalEffective Time; (d) no Material Adverse Effect on the Buyer Company shall have received all permits occurred since the date hereof and other authorizations required under applicable state securities laws for the issuance of the Merger Sharesbe continuing; (e) since the Companydate hereof, the Buyerno change, the Escrow Agent and the Stockholders' Agent event, occurrence (as defined in Article VII heretoor development or threat with respect to a prospective change, event or occurrence) shall have entered into occurred which, individually or in the Escrow Agreement; andaggregate, has had or would reasonably be likely to have a Material Adverse Effect on the Company; (f) there shall not be pending any suit, action or proceeding by any Governmental Entity or other person (i) seeking the Buyer and result set forth in Section 5.1(b) or (ii) which otherwise is reasonably likely to have a Material Adverse Effect on the Company; (g) the Company shall each have received delivered to the written opinion of their respective counsel in form reasonably satisfactory Parent a certificate (without qualification as to each of the opposing counsel knowledge or materiality or otherwise) to the effect that the Merger will be treated conditions specified in Sections 5.1(a), 5.2(b) and 5.2(c) are satisfied; (h) the Parent shall have received a properly executed statement in a form reasonably acceptable to the Parent for federal income tax the purposes of satisfying the Parent's obligations under Treasury Regulations Section 1.1445-2(c)(3); (i) the Parent shall have received from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., special counsel to the Company, an opinion addressed to the Parent and dated the Closing Date as a reorganization within to each of the meaning matters set forth in Exhibit E; (j) the Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement; (k) each of Section 368(athe Company Stockholder Agreements shall have been terminated; (l) the holders of at least seventy five percent (75%) of the Code. In preparing then issued and outstanding shares of Company Common Stock shall have approved the tax acceleration of vesting of the Options by the Company; (m) the Company shall have no Company Debt; and (n) all certificates, opinions, counsel may rely on reasonable assumptions instruments and may also rely on (other documents required to effect the transactions contemplated hereby shall be in form and substance reasonably satisfactory to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoParent.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's Obligations. The respective obligations of each Party to consummate the Merger are subject to the satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company StockholdersShareholder Approval; (b) the Buyer and completion of up to $13,000,000 in financing under the Company shall be satisfied that the issuances of Buyer Common Stock in the transaction shall be exempt under Section 4(2) of the Securities ActBridge Loan; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court the completion of competent jurisdiction or other legal or regulatory restraint or prohibition preventing up to $10,700,000 in financing under the consummation of the Merger or limiting or restricting the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger shall have been issued, nor shall any proceeding brought by any Governmental Entity, seeking any of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegalOXFV Bridge Loan; (d) the Buyer completion of the sale of certain pharmaceutical assets, as set forth in Exhibit D, to the Company from Access Pharmaceuticals, Inc.; and (e) satisfactory completion by Parent and Company of all necessary legal due diligence. 5.2 Conditions to Obligations of the Parent and the Acquisition Subsidiary. The obligation of each of the Parent and the Acquisition Subsidiary to consummate the Merger is subject to the satisfaction (or waiver by the Parent) of the following additional conditions, except for any the failure of which to obtain or effect would not have a Company Material Adverse Effect or affect on the ability of the Parties to consummate the transactions contemplated by this Agreement: (a) the number of Dissenting Shares shall not exceed 10% of the number of outstanding Company Shares as of the Effective Time; (b) the Company and the Subsidiaries shall have received obtained (and shall have provided copies thereof to the Parent) all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shareswaivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Company or the Subsidiaries; (c) the representations and warranties of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time as though made as of the Effective Time, except to the extent that the inaccuracy of any such representation or warranty is the result of events or circumstances occurring subsequent to the date of this Agreement and any such inaccuracies, individually or in the aggregate, would not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement (it being agreed that any materiality qualifications in particular representations and warranties shall be disregarded in determining whether any such inaccuracies would have a Company Material Adverse Effect for purposes of this Section 5.2(c)); (d) the Company shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; (e) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the Companytransactions contemplated by this Agreement, (ii) cause any of the Buyertransactions contemplated by this Agreement to be rescinded following consummation or (iii) have, individually or in the Escrow Agent aggregate, a Company Material Adverse Effect, and the Stockholders' Agent (as defined no such judgment, order, decree, stipulation or injunction shall be in Article VII hereto) shall have entered into the Escrow Agreement; andeffect; (f) the Buyer Company shall have delivered to the Parent and the Acquisition Subsidiary a certificate (the "Company shall each have received the written opinion of their respective counsel in form reasonably satisfactory to each of the opposing counsel Certificate") to the effect that each of the Merger will be treated for federal income tax purposes as a reorganization within the meaning conditions specified in clauses (a) and (c) of Section 368(a5.1 and clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Company or a Subsidiary) of this Section 5.2 is satisfied in all respects; and (g) the Code. In preparing the tax opinionsParent shall have received from McGuireWoods LLP, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably requiredCompany, an opinion with respect to the parties matters set forth in Exhibit B attached hereto, addressed to the Parent and Company Stockholders shall make) reasonable representations related theretodated as of the Closing Date.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's Obligations. The respective obligations of each Party to consummate the Merger are subject to the satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval Approval; (b) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the Company Stockholderstransactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) affect adversely the right of Parent to own, operate or control any of the assets and operations of the Surviving Corporation following the Merger, and no such judgment, order, decree, stipulation or injunction shall be in effect; and (c) the execution by Parent, the Principals and the Escrow Agent of the Escrow Agreement; provided that no Party who refuses to sign such agreement may utilize this subsection if the terms of the Escrow Agreement are substantially as set forth in Exhibit A attached hereto. 5.2 Conditions to Obligations of Parent and the Acquisition Subsidiary. The obligation of each of Parent and the Acquisition Subsidiary to consummate the Merger is subject to the satisfaction or waiver by such Party of the following additional conditions: (a) there shall be no Dissenting Shares as of the Effective Time; (b) the Buyer and the Company shall be satisfied that the issuances of Buyer Common Stock in the transaction shall be exempt under Section 4(2) have obtained all of the Securities Actwaivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2, except as to such matters as the failure to obtain will not have a Material Adverse Effect (as defined in Section 2.0 of this Agreement) on the Company; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation representations and warranties of the Merger or limiting or restricting Company and the Buyer's conduct or operation Principals set forth in Article II shall be true and correct when made on the date hereof and as of the business Effective Time as if made as of the Buyer or the Surviving Corporation after the Merger Effective Time, except for representations and warranties expressly made only as of a specific date, which shall have been issued, nor shall any proceeding brought by any Governmental Entity, seeking any be true and correct as of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegalsuch date; (d) the Buyer Company shall have received all permits performed or complied with the agreements and other authorizations covenants required to be performed or complied with under applicable state securities laws for this Agreement as of or prior to the issuance of the Merger SharesEffective Time; (e) the Company, the Buyer, the Escrow Agent Company shall have delivered to Parent and the Stockholders' Agent Acquisition Subsidiary a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified in clauses (a) and (b) of Section 5.1 and clauses (a) through (d) of this Section 5.2 have been satisfied in all respects; (f) Parent the Acquisition Subsidiary shall have received from counsel to the Company an opinion with respect to the matters and in a form as substantially set forth in Exhibit B attached hereto, addressed to Parent and the Acquisition Subsidiary and dated as of the Closing Date; (g) the following persons shall have each entered into an employment agreement with the Buyer and/or the Surviving Corporation on terms and conditions acceptable to Buyer: Xxxxx XxxXxxxxx, Xxxxx Xxxxxxx, Xxxxxxxx Xxxxx, Xxx Xxxxx, and Xxx Xxxxxxxxxx; (h) the Buyer shall have received from each of the Principals and each other Company Preferred Stockholder the investment representation letter in substantially the form of Exhibit C and the issuance of the Merger Shares as contemplated hereby shall, in the opinion of counsel to Parent, be exempt from the registration requirements of the Securities Act of 1933, as amended; (i) all Options shall have been exercised or cancelled and the agreement of each holder of an Option shall have been obtained as contemplated by Section 1.10 of this Agreement and the Xxxxx Notes shall have been forgiven as contemplated by Section 4.9; (j) the Company shall have no Liabilities, except for the Permitted Liabilities (as defined in Article VII heretoSection 2.8), the Stated Liabilities shall not exceed $2,400,000, and the Company shall have cash on hand in an amount not less than the Required Minimum Cash as set forth in Section 1.5(g); (k) the persons who are issued the additional Company Preferred Shares in accordance with Section 1.11 shall have executed a counterpart signature page to this Agreement agreeing to be bound by all the terms and conditions as Principals hereunder; (l) each of the Settlement (as defined in Section 1.11) and the settlement or indemnification of the potential liability of the Company to Wit Capital (as described in Section 2.27) shall be reasonably satisfactory in form and substance to the Parent and its counsel; (m) this Agreement and the transactions contemplated hereby shall have been approved by the Board of Directors of Parent; (n) in the opinion of Parent after consultation with its accountants and other advisors, the Company (or the Surviving Corporation following the Closing) shall have entered into the Escrow Agreementno material unpaid sales, use or other tax liabilities or potential liabilities; and (fo) all actions to be taken by the Buyer Company and the Company Stockholders in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall each have received the written opinion of their respective counsel be reasonably satisfactory in form reasonably satisfactory and substance to each of Parent and the opposing counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoAcquisition Subsidiary.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's ObligationsObligation. The respective obligations of each Party the Parent, the Transitory Subsidiary and the Company to consummate the Merger are shall be subject to satisfaction at or prior to the satisfaction Effective Time of each of the following conditions, any of which may be waived in whole or in part by the Parent, the Transitory Subsidiary or the Company, as the case may be, to the extent permitted by applicable law: (a) the Requisite Shareholder Approval shall have been obtained; (b) either (i) the Commissioner shall have issued a permit authorizing the issuance and sale of Parent Common Stock pursuant to the Permit Application (the "CSL Permit") and the qualification thereunder shall not be the subject of any stop order or proceedings seeking a stop order or (ii) in accordance with Article 6 of this Agreement, the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order; (c) the shares of Parent Common Stock issuable to the holders of Company Stock pursuant to this Agreement and in the Merger shall have received been authorized for quotation on the Requisite Stockholder Approval Nasdaq National Market System, subject to official notice of issuance; (d) no Government Entity (including a federal or state court) of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which materially restricts, prevents or prohibits consummation of the Merger or any transaction contemplated by this Agreement; and (e) any waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated, and no action shall have been instituted by the Department of Justice or Federal Trade Commission challenging or seeking to enjoin the consummation of this transaction, which action shall have not been withdrawn or terminated. 5.2 Conditions to Obligations of the Parent and the Transitory Subsidiary. The obligation of each of the Parent and the Transitory Subsidiary to consummate the Merger shall be subject to satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived in whole or in part by Parent and the Transitory Subsidiary to the extent permitted by applicable law: (a) the Parent, Transitory Subsidiary and the Company shall have obtained all required Approvals and effected all required registrations and filings, necessary to consummate the Merger (including to enable the Surviving Corporation to conduct its business and to own or lease its properties and assets in substantially the same manner in which such business was previously conducted and such assets and properties were previously owned or leased and to continue to lease the property leased by the Company Stockholdersat 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx for the remaining term of any sublease thereof, unless such lease shall have been terminated without liability or cost to the Company and evidence thereof reasonably satisfactory to Parent shall have been furnished to Parent), of Governmental Entities and of third parties, except where the failure to obtain or effect any such waiver, permit, consent, approval, authorization, registration, filing or notice of third parties would not have a Material Adverse Effect or a material adverse effect on the Parent; (b) the Buyer representations and warranties of the Company set forth in Article 2 shall be satisfied that true and correct on the issuances of Buyer Common Stock in the transaction date hereof and shall be exempt under Section 4(2true and correct in all material respects (without giving effect, for these purposes, to any qualifications in such representations and warranties that require a fact or event to be material, have a Material Adverse Effect or meet a certain minimum dollar threshold in order for such fact or event to constitute a misrepresentation or a breach of warranty) as of the Securities ActClosing Date as if made as of the Closing Date, except for representations and warranties made as of a specific date, which shall be true and correct as of such date; (c) the Company shall have performed or complied with its covenants set forth in Section 4.3 and shall have performed or complied in all material respects with its other agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; (d) no temporary restraining orderchange, preliminary event, occurrence (or permanent injunction development or threat with respect to a prospective change, event or occurrence) shall have occurred which, individually or in the aggregate, has had or would reasonably be likely to have a Material Adverse Effect; (e) unless the holders of greater than 95% of the issued and outstanding shares of Company Stock have executed a written consent adopting and approving this Agreement, the Merger and the other transactions and agreements contemplated hereby, the period during which shareholders of the Company may assert rights under Chapter 13 of the CGCL shall have ended and not greater than 5% of the issued and outstanding shares of Company Stock as of the Effective Time shall be Dissenting Shares in respect of which the holder thereof has not forfeited, lost or withdrawn his or her right to have the Company repurchase such shares pursuant to Chapter 13 of the CGCL; (f) there shall not be pending any suit, action or proceeding by any Governmental Entity or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing person (i) seeking to prevent the consummation of the Merger or limiting seeking significant damages in connection therewith or restricting (ii) which otherwise is reasonably likely to have a Material Adverse Effect; (g) the Buyer's conduct Company shall have delivered to the Parent a certificate (without qualification as to knowledge or operation materiality or otherwise, except insofar as it relates to knowledge of actions, suits or proceedings threatened against the Company) to the effect that the conditions specified in clause (a) of Section 5.1 and clauses (a) (with respect to Approvals and any registrations and filings for which it is responsible), (b), (c), (d), (e) and (f) of this Section 5.2 are satisfied; (h) the Parent shall have received from each Affiliate an executed Affiliate Letter; (i) the holders of not less than 95% of the business issued and outstanding shares of Company Stock as of the Buyer Effective Time, shall have executed either the Voting Agreement or the Surviving Corporation after Appointment and Acknowledgment and the Merger Parent shall have been issuedreceived from each such holder an executed copy of such Voting Agreement or Appointment and Acknowledgment; (j) the Parent shall have received the certificate provided for in Section 1.5(k) hereof; (k) the Company shall have received (and the Parent shall have received a copy of) a letter, nor shall any proceeding brought by any Governmental Entitydated the Closing Date, seeking any of from Chen & Fan, auditors for the foregoing be pending; nor shall there be any action takenCompany, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable with respect to the Merger which makes the consummation treatment of the Merger illegalas a pooling-of-interests, which letter shall be in form and substance reasonably satisfactory to the Parent; (dl) the Buyer Parent shall have received all permits and other authorizations required under applicable state securities laws a letter, dated the Closing Date, from KPMG LLP, auditors for the issuance Parent, with respect to the treatment of the Merger Sharesas a pooling of interests, which letter shall be in form and substance reasonably satisfactory to the Parent; (em) if, in accordance with Article 6, the Parent has determined to withdraw the Permit Application and to file the S-4, the Parent shall have received the Comfort Letter of Chen & Fan, the Company's independent auditors, dated a date within two business days before the date on which the S-4 became effective, and a bring down of the Comfort Letter, dated a date within two business days before the Effective Time, each of which shall be addressed to the Parent, in form and substance reasonably satisfactory to the Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the S-4; (n) the Parent shall have received from Wilson, Sonsini, Xxxxxxxx & Xxxxxx, special counsel to the Company, an opinion addressed to the BuyerParent and dated the Closing Date as to each of the matters set forth in Exhibit H-1 and from Law & Xxxxxx, corporate counsel to the Company, an opinion addressed to the Parent and dated the Closing Date as to each of the matters set forth in Exhibit H-2; (o) the Parent, the Representative and the Escrow Agent shall have executed and delivered the Stockholders' Agent Escrow Agreement; (as defined p) all officers, employees or consultants of the Company who have developed or participated in Article VII hereto) the development of the Company's GaAs HBT process or products shall have entered into an Assignment of Inventions Agreement with the Escrow Agreement; and (f) the Buyer and the Company shall each have received the written opinion of their respective counsel Company, such agreement to be in form and substance reasonably satisfactory to the Parent; (q) each of the opposing Company Shareholder Agreements shall have been terminated; (r) the Parent shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel to the Parent, in form and substance reasonably satisfactory to the Parent, dated as of the Effective Time, substantially to the effect that the Merger will be treated qualify as a reorganization for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing The issuance of such opinion shall be conditioned upon the receipt by such tax counsel of representation letters from each of the Parent, the Transitory Subsidiary and the Company, in each case, in substantially the form and substance as attached hereto as Exhibit J-1 and Exhibit J-2 and in form and substance reasonably satisfactory to such counsel, which letters shall not have been modified or withdrawn; (s) the Parent shall have received from the Company a certification, in a form substantially similar to that attached as Exhibit K, certifying under penalties of perjury that the Company has not been a United States real property holding company within the meaning of Code Section 897(c)(2) during the applicable period specified in Code Section 897(c)(1)(A)(ii); (t) the Parent shall have received from Taiunion Investment Limited ("Taiunion") such evidence of Taiunion's commitment to confer upon the Parent an equal sharing of the rights and benefits of Taiunion under the Guaranty dated April 10, 1998 (the "Guaranty") by DII Group, Inc. for the benefit of the Company, previously assigned by the Company to Taiunion, such evidence to be in form satisfactory to the Parent, acting reasonably; (u) each of the employment agreements included in Exhibit I shall be in full force and effect, and no employee that is a party to any such employment agreement shall be in material breach or default thereof; (v) the Parent shall have received from Wyoming counsel to Taiunion Investment LLC, a shareholder of the Company, such counsel to be reasonably acceptable to the Parent, an opinion addressed to the Parent and dated the Closing Date as to each of the matters set forth in Exhibit H-3; and (w) all certificates, opinions, counsel may rely on reasonable assumptions instruments and may also rely on (other documents required to effect the transactions contemplated hereby shall be in form and substance reasonably satisfactory to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoParent.

Conditions to Consummation of Merger. 5.1 Conditions to Each Party's Obligations. The respective obligations of each Party to consummate the Merger are subject to the satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Company Stockholder Approval by the Company StockholdersApproval; (b) the Buyer completion of the offer and sale of the Private Placement Offering; and (c) satisfactory completion by Parent and Company of all necessary legal due diligence. 5.2 Conditions to Obligations of the Parent and the Company shall be satisfied that Acquisition Subsidiary. The obligation of each of the issuances of Buyer Common Stock in Parent and the transaction shall be exempt under Section 4(2Acquisition Subsidiary to consummate the Merger is subject to the satisfaction (or waiver by the Parent) of the Securities Actfollowing additional conditions: (a) the number of Dissenting Shares shall not exceed 10% of the number of outstanding Company Shares as of the Effective Time; (b) the Company and its Subsidiaries shall have obtained (and shall have provided copies thereof to the Parent) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Company or the Subsidiaries, except for any the failure of which to obtain or effect would not, individually or in the aggregate, have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation representations and warranties of the Merger or limiting or restricting the Buyer's conduct or operation Company set forth in this Agreement shall be true and correct as of the business date of this Agreement and shall be true and correct as of the Buyer or the Surviving Corporation after the Merger shall have been issued, nor shall any proceeding brought by any Governmental Entity, seeking any Effective Time as though made as of the foregoing be pending; nor shall there be any action takenEffective Time, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable except to the Merger which makes extent that the consummation inaccuracy of any such representation or warranty is the result of events or circumstances occurring subsequent to the date of this Agreement and any such inaccuracies, individually or in the aggregate, would not have a Company Material Adverse Effect or a material adverse effect on the ability of the Merger illegalParties to consummate the transactions contemplated by this Agreement (it being agreed that any materiality qualifications in particular representations and warranties shall be disregarded in determining whether any such inaccuracies would have a Company Material Adverse Effect for purposes of this Section 5.2(c)); (d) the Buyer Company shall have received performed or complied in all permits material respects with its agreements and other authorizations covenants required to be performed or complied with under applicable state securities laws for this Agreement as of or prior to the issuance of the Merger SharesEffective Time; (e) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the Companytransactions contemplated by this Agreement, (ii) cause any of the Buyertransactions contemplated by this Agreement to be rescinded following consummation or (iii) have, individually or in the Escrow Agent aggregate, a Company Material Adverse Effect, and the Stockholders' Agent (as defined no such judgment, order, decree, stipulation or injunction shall be in Article VII hereto) shall have entered into the Escrow Agreement; andeffect; (f) the Buyer Company shall have delivered to the Parent and the Acquisition Subsidiary a certificate (the "Company shall each have received the written opinion of their respective counsel in form reasonably satisfactory to each of the opposing counsel Certificate") to the effect that each of the Merger will be treated for federal income tax purposes as a reorganization within the meaning conditions specified in clauses (a) and (c) of Section 368(a5.1 and clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Company or a Subsidiary) of this Section 5.2 is satisfied in all respects; and (g) the Code. In preparing the tax opinionsParent shall have received from McGuireWoods LLP, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably requiredCompany, an opinion with respect to the parties matters set forth in Exhibit B attached hereto, addressed to the Parent and Company Stockholders shall make) reasonable representations related theretodated as of the Closing Date.

Conditions to Consummation of Merger. 5.1 6.1 Conditions to Each Party's Obligations. The respective obligations of each Party to consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company StockholdersApproval; (b) the Buyer and the Company shall be satisfied that the issuances of Buyer Common Stock in the transaction shall be exempt under Regulation D of the Securities Act and Section 4(2) of the Securities Act; (c) no temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger or limiting or restricting the Buyer's conduct or operation of the business of the Buyer or the Surviving Corporation after the Merger shall have been issued, nor shall any proceeding brought by any Governmental Entity, seeking any of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegal;; and (d) the Buyer shall have received all permits and other authorizations required under applicable state securities laws for the issuance of the Merger Shares; (e) no proceeding in which the Company, the BuyerBuyer or the Merger Sub shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against the Company, the Escrow Agent and the Stockholders' Agent (as defined in Article VII hereto) shall have entered into the Escrow Agreement; and (f) the Buyer and the Company shall each have received the written opinion of their respective counsel in form reasonably satisfactory to each of the opposing counsel to the effect that or the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In preparing the tax opinions, counsel may rely on reasonable assumptions and may also rely on (and to the extent reasonably required, the parties and Company Stockholders shall make) reasonable representations related theretoSub under any United States or state bankruptcy or insolvency law.