Common use of Conditions to Obligation of Buyer and MergerCo Clause in Contracts

Conditions to Obligation of Buyer and MergerCo. The obligation of Buyer and MergerCo to consummate the Merger is subject to the satisfaction of the following further conditions (other than any such conditions that are waived by Buyer and MergerCo): (i) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by the Company at or prior to the Effective Time, (ii) except as may be affected by any matters listed on Schedule 6.01 hereof and notwithstanding, and without giving effect to, the statement in the first paragraph of Article 3 that the representations and warranties of the Company are made “as of the date hereof,” but giving effect to language in any subsection of Article 3 that representations and warranties contained therein are made as of a specific date, the representations and warranties of the Company contained in this Agreement shall be true at and as of the date of the Effective Time, as if made at and as of such date (except for representations and warranties (pursuant to language in any subsection of Article 3) that are made as of a specific date, which representations and warranties shall be true at and as of such respective specific date), with only such exceptions (without giving effect to any qualifications to materiality (including Material Adverse Effect)) as would not in the aggregate reasonably be expected to have a Material Adverse Effect, and (iii) MergerCo shall have received certificates signed by an appropriate officer of the Company to the foregoing effect. (b) Buyer shall have received certification from the Company in the form attached as Exhibit B that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code. (c) The proceeds of the Financing shall have been made available to Buyer on substantially the terms and conditions set forth in the Financing Commitments (as modified by any changes made or requested pursuant to the terms contained in any related documents). (d) Each party to the Escrow Agreement (other than Buyer) shall have executed and delivered the Escrow Agreement. (e) The Company shall have furnished to Buyer written evidence reasonably satisfactory to Buyer that the amounts to be paid by MergerCo pursuant to Section 7.09(b) constitute all Transaction Expenses.

Conditions to Obligation of Buyer and MergerCo. The obligation of Buyer and MergerCo to consummate the Merger is subject to the satisfaction of the following further conditions (other than any such conditions that are waived by Buyer and MergerCo): (i) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by the Company at or prior to the Effective Time; provided that the Company shall be deemed to have performed in all material respects all of its obligations under Section 6.10 if the Company shall have delivered to Buyer amended Schedules at least four but not more than ten Business Days prior to the Closing Date and it shall have further amended such Schedules prior to the Closing Date to include any other information specified in Buyer’s written notice delivered pursuant to Section 7.10 that the Company shall have determined to be necessary to perform in all material respects all of its obligations under Section 6.10, (ii) except as may be affected by any matters listed on Schedule 6.01 hereof and notwithstanding, and without giving effect to, the statement in the first paragraph of Article 3 that the representations and warranties of the Company are made “as of the date hereof,” but giving effect to language in any subsection of Article 3 that representations and warranties contained therein are made as of a specific date, the representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions as to materiality or Material Adverse Effect contained therein) shall be true at and as of the date hereof and as of the Effective Time, as if made at and as of such date (except for representations and warranties (pursuant to language in any subsection of Article 3) that are made as of a specific date, which representations and warranties shall be true at and as of such respective specific date), with only such exceptions (without giving effect to any qualifications to materiality (including Material Adverse Effect)) as would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect, Effect and (iii) MergerCo shall have received certificates a certificate, dated the Closing Date, signed by an appropriate officer representative of the Company to the foregoing effect. (b) Buyer shall have received certification from the Company in the form attached as Exhibit B C that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code. (c) The proceeds Buyer shall have received from the Company a copy of a customary payoff letter specifying, as of the Financing shall have been made available to Buyer on substantially Closing Date, the terms and conditions set forth amounts described in clause (i) of the Financing Commitments (as modified by any changes made or requested pursuant to the terms contained in any related documents)definition of Net Debt Repayment Cost. (d) The Company shall have delivered duly executed resignations of all of the directors of the Company and the Company Subsidiaries. (e) Each party to the Escrow Agreement (other than Buyer) shall have executed and delivered the Escrow Agreement. (ef) The Stockholder Approval shall not have been rescinded. (g) The Company shall have furnished delivered a certificate of the Secretary of the Company, dated as of the Closing Date, certifying as to Buyer written evidence (i) the incumbency of officers of the Company executing documents executed and delivered in connection herewith, (ii) the copies of the certificate of incorporation and bylaws, each as in effect from the date of this Agreement until the Closing Date and (iii) a copy of the resolutions of the Company’s board of directors authorizing and approving the applicable matters contemplated hereunder. (h) There shall not have occurred after the date hereof and on or prior to the Closing Date any event, change or circumstance which has had, or would reasonably satisfactory be expected to Buyer that the amounts to be paid by MergerCo pursuant to Section 7.09(b) constitute all Transaction Expenseshave, a Material Adverse Effect.

Conditions to Obligation of Buyer and MergerCo. The obligation of Buyer and MergerCo to consummate the Merger is subject to the satisfaction of the following further conditions (other than any such conditions that are waived by Buyer and MergerCo): (i) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by the Company at or prior to the Effective Time, (ii) except as may be affected by any matters listed on Schedule 6.01 hereof and notwithstanding, and without giving effect to, the statement in the first paragraph of Article 3 that the representations and warranties of the Company are made “as of the date acts permitted by Section 5.01 hereof,” but giving effect to language in any subsection of Article 3 that representations and warranties contained therein are made as of a specific date, the representations and warranties of the Company contained in this Agreement shall be true at and as of the date of the Effective Time, as if made at and as of such date (except for representations and warranties (pursuant to language in any subsection of Article 3) that are made as of a specific date, which representations and warranties shall be true at and as of such respective specific date), with only such exceptions (without giving effect to any qualifications to materiality (including Material Adverse Effect)) as would not in the aggregate reasonably be expected to have a Material Adverse Effect, and (iii) MergerCo shall have received certificates signed by an appropriate officer of the Company to the foregoing effect. (b) Buyer shall have received certification from the Company in the form attached hereto as Exhibit B F that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code. (c) The proceeds Since the date of this Agreement, there shall not have occurred any circumstance or change in or effect on the Financing shall Company or any Company Subsidiary that has had or would reasonably be expected to have been made available to Buyer on substantially the terms and conditions set forth in the Financing Commitments (as modified by any changes made or requested pursuant to the terms contained in any related documents)a Material Adverse Effect. (d) Each party to The Stockholders’ Representative and the Escrow Agreement (other than Buyer) Agent shall have executed and delivered the Escrow Agreement. (e) Holders of not more than 7.5% of the Common Shares and Preferred Shares together (calculated on an as-converted basis) shall have validly exercised and not withdrawn or lost any appraisal or dissenter rights pursuant to CA Law. (f) Buyer shall have received an opinion of counsel to the Company with respect to the matters on Exhibit G attached hereto. (g) All Company Stock Options previously outstanding under the Ion Systems, Inc. 1988 Equity Incentive Plan, as adopted June 30, 1988, shall have been duly terminated, and no new Company Stock Options shall have been granted under such 1988 Equity Incentive Plan since the last date on which Company Stock Options where permitted to be granted under such plan, without amendment of the plan. (h) The termination agreement by and among the Company, the TWCP Entities, TWCP LLC and Xxxxx Xxxxxx dated November 22, 2005, a copy of which is attached hereto, shall be in full force and effect, without modification. (i) Subject to compliance with ERISA and the Code, the Company shall have furnished to Buyer written evidence reasonably satisfactory to Buyer terminated the Profit Sharing 401(k) Plan and the Tantec Incorporated Retirement Savings Plan, in each case effective as of the Closing Date; provided, however, that neither the Company, the Company’s Board of Directors or its Stockholders shall have a reasonable expectation of liability in respect of such termination, and provided, further, that the amounts Company shall be required to be paid satisfy this condition to Closing only if such condition is capable of being satisfied by MergerCo pursuant to Section 7.09(b) constitute the time that all Transaction Expensesother conditions set forth in this Article 8 shall have been waived or satisfied.