Common use of Conditions to Obligation of Company to Effect the Merger Clause in Contracts

Conditions to Obligation of Company to Effect the Merger. The obligation of Company to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following additional conditions: (a) Each of Parent and Sub shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warran- ties of Parent and Sub contained in this Agreement shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time, except as contemplated by this Agreement, and Company shall have received a certificate of the Chairman of the Board, the President or an Executive Vice President of Parent as to the satisfaction of this condition. (b) Company shall have received an opinion of Debevoise & Xxxxxxxx, counsel to Company, in form and substance reasonably satisfactory to Company, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion Debevoise & Xxxxxxxx may require and rely upon representations contained in certificates of officers of Parent and Company and others, as well as certificates of stockholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others. (c) Company shall have received an opinion from Xxxxx X. Xxxxx, Senior Vice President, General Counsel and Secretary of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to Parent, dated the Effective Time, to the effect that: (i) Each of Parent and Sub is a corporation validly existing under the laws of the state of its incorporation. (ii) Each of Parent and Sub has the corporate power to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Parent and Sub. (iii) This Agreement has been executed and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Sub, enforceable against Parent and Sub in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent and Sub, nor the consummation by Parent and Sub of the transactions contemplated hereby, will violate the charter documents or By-Laws of Parent or Sub or, to the best knowledge of such counsel, and except as set forth in the Parent Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Parent or Sub, as the case may be, prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinion. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance and, when issued as contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Parent and Sub and of public officials and opinions of local counsel, reasonably acceptable to Company. (d) The listing application referred to in Section 7.3(b) shall have been approved by the New York Stock Exchange. (e) Parent shall have executed and delivered the Registration Rights Agreements, substantially in the form of Exhibit B hereto.

Conditions to Obligation of Company to Effect the Merger. The Unless waived in writing by Company, the obligation of Company to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Each of Parent (i) Acquiror and Acquisition Sub shall have performed in all material respects its obligations under their agreements contained in this Agreement required to be performed by it at on or prior to the Effective Time and Closing Date, (ii) the representations and warran- ties warranties of Parent Acquiror and Acquisition Sub contained in this Agreement Agreement, without regard to any materiality or Material Adverse Effect qualifier contained therein, shall be true and correct in all material respects at on and as of the Effective Time date made and on and as of the Closing Date as if made at and as of such timethe Closing Date (except for any representations and warranties made as of a specified date, which shall be true and correct as of the specified date), except as contemplated by where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Acquiror and would not materially impair Acquiror’s ability to perform its obligations under this Agreement, and (iii) Company shall have received a certificate of the Chairman of the Board, the President or an Executive a Vice President of Parent as Acquiror and of the President or a Vice President of Acquisition Sub to the satisfaction of this condition.that effect; and (b) Company shall have received from Xxxxx & Xxxxxxx L.L.P. (or other counsel reasonably acceptable to Company), an opinion on the basis of Debevoise & Xxxxxxxxrepresentations and assumptions set forth in such opinion, counsel to Company, in form and substance reasonably satisfactory to Company, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization be treated for Federal federal income tax purposes as a reorganization within the meaning of section Section 368(a) of the CodeCode and such opinion shall not have been withdrawn as of the Effective Time; provided, however, that if Xxxxx & Xxxxxxx L.L.P. does not render such opinion or withdraws or modifies such opinion, this condition shall nonetheless be deemed satisfied if King & Spalding LLP renders such opinion to the Company, which opinion has not been withdrawn. In rendering such opinion Debevoise & Xxxxxxxx may require and its opinion, counsel shall be entitled to rely upon representations contained in certificates of officers of Parent Acquiror and Company and others, as well as certificates of stockholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others. (cthat are provided pursuant to Section 6.15(b) Company shall have received an opinion from Xxxxx X. Xxxxx, Senior Vice President, General Counsel and Secretary of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to Parent, dated the Effective Time, to the effect that: (i) Each of Parent and Sub is a corporation validly existing under the laws of the state of its incorporation. (ii) Each of Parent and Sub has the corporate power to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Parent and SubAgreement. (iii) This Agreement has been executed and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Sub, enforceable against Parent and Sub in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent and Sub, nor the consummation by Parent and Sub of the transactions contemplated hereby, will violate the charter documents or By-Laws of Parent or Sub or, to the best knowledge of such counsel, and except as set forth in the Parent Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Parent or Sub, as the case may be, prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinion. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance and, when issued as contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Parent and Sub and of public officials and opinions of local counsel, reasonably acceptable to Company. (d) The listing application referred to in Section 7.3(b) shall have been approved by the New York Stock Exchange. (e) Parent shall have executed and delivered the Registration Rights Agreements, substantially in the form of Exhibit B hereto.

Conditions to Obligation of Company to Effect the Merger. The obligation of Company to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following additional conditions: (a) Each of Parent and Sub shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the Time. The representations and warran- ties warranties of Parent and Sub contained set forth in this Agreement that are qualified as to materiality shall be true and correct, and those that are not so qualified shall be true and correct in all material respects at respects, as of the date of this Agreement and as of the Effective Time Closing as if though made at and as of such time, 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 contemplated by this Agreementto materiality shall be true and correct, and those that are not so qualified shall be true and correct in all material respects, as of such earlier date). Company shall have received a certificate of the Chairman of the Board, the President or an Executive a Vice President of Parent as to the satisfaction of this condition. (b) Company shall have received an opinion The stockholders of Debevoise & Xxxxxxxx, counsel to Company, in form and substance reasonably satisfactory to Company, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion Debevoise & Xxxxxxxx may require and rely upon representations contained in certificates of officers of Parent and Company and others, as well as certificates of stockholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others. (c) Company shall have received an opinion from Xxxxx X. Xxxxx, Senior Vice President, General Counsel and Secretary of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to Parent, dated the Effective TimeTime in substantially the form attached hereto as Exhibit 8.2(b), to the effect that: (i) Each of Parent and Sub is a corporation validly existing under the laws of the state of its incorporation. (ii) Each of Parent and Sub has the corporate power to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation of the 44 transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Parent and Sub. (iii) This Agreement has been executed and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Subthem, enforceable against Parent and Sub in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent and Sub, Sub nor the consummation by Parent and Sub of the transactions contemplated hereby, hereby will violate the charter documents or By-Laws Bylaws of Parent or Sub or, to the best knowledge of such counsel, and except as set forth in the Parent Disclosure Letter Schedule without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Parent or Sub, as the case may be, prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which set forth in Section 4.16 of the Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinionDisclosure Schedule. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance and, when issued as contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware Tennessee corporate law, such counsel may rely upon the certificates of officers and directors of Parent and Sub and of public officials and opinions may assume that applicable state laws do not differ in any material respect from those of local counselTennessee. (c) There shall not have occurred any event or occurrence with respect to Parent that, reasonably acceptable to in the reasonable judgment of Company, has resulted or would result in a material adverse effect on the business, assets, liabilities, results of operations, financial condition or prospects of Parent and the Parent Subsidiaries taken as a whole. (d) The listing application referred to in Section 7.3(b) Each of X.X. Xxxxxxx III, L.P., X.X. Xxxxxxx XX, L.P. and Whitney Strategic Partners III, L.P. shall have been approved added as a party to the Amended and Restated Investors' Rights Agreement of Parent, as amended (the "Parent Investors' Rights Agreement") pursuant to an amendment to the Parent Investors' Rights Agreement in the form attached hereto as Exhibit 8.2(d) (the "Amendment to Parent Investors' Rights Agreement"), to provide Whitney with investment rights on a pro rata basis with Parent's other shareholders that have such rights and registration rights in respect of the Parent Common Stock received by Whitney that are pari passu with the New York Stock Exchange. existing registration rights of Parent's shareholders (ewhich include the right of such shareholders to demand the registration of their securities on two (2) occasions and the right of such shareholders to unlimited Form S-3 registrations of their securities). Certain of the shareholders of Parent shall have executed and delivered the Registration Amendment to Parent Investors' Rights AgreementsAgreement. (e) The stockholders of Company holding five percent or more of the outstanding capital stock of Company prior to the Closing and listed on Exhibit 8.2(e) shall have been added as a party to the Parent Investors' Rights Agreement pursuant to the Amendment to Parent Investors' Rights Agreement, substantially to provide such stockholders with piggyback registration rights in respect of the Parent Common Stock received by such stockholders that are pari passu with the existing piggyback registration rights of Parent's shareholders. (f) Parent and Whitney shall have executed and delivered an agreement in the form attached hereto as Exhibit 8.2(f), whereby Whitney shall receive the right to designate directors to the Board of Directors of Parent as provided in Section 7.9 hereof. (g) Certain of the shareholders of Parent shall have executed and delivered Amendment No. 2 to the Voting Agreement in the form attached hereto as Exhibit B hereto8.2(g), whereby such shareholders agree to vote for the designees of Whitney to the Board of Directors as provided in Section 7.9 hereof. (h) Upon the consummation of the Merger and subject to the provisions of Section 3.1(f), warrants to purchase shares of Company Common Stock issued to certain physicians affiliated with Physicians Surgical Specialty Hospital, LLC and Northstar Surgical Center, L.P. in connection with the elimination of certain conversion rights contained in the respective governing documents (the "Roll-up Warrants") shall be exchanged for warrants to purchase shares of Parent Common Stock in accordance with the terms of the Roll-up Warrants. (i) Company shall have received Parent's audited balance sheet and related statements of operations, shareholders' equity and cash flows, together with all schedules and notes thereto, of Parent and its consolidated subsidiaries for the year ended December 31, 2001, and such financial statements shall not differ in any material respect from the Parent Unaudited Financial Statements.

Conditions to Obligation of Company to Effect the Merger. The obligation of the Company to effect the Merger shall will be subject to the satisfaction fulfillment at or prior to the Effective Time of the following additional conditions: (ai) Each The representations and warranties of Parent and Sub the ESOP contained in this Agreement shall have performed been true and correct in all material respects its obligations under this Agreement required to (except that representations and warranties qualified by materiality shall be performed by it at or prior to true and correct in all respects) as of the Effective Time date hereof and (ii) the representations and warran- ties warranties of Parent the ESOP and Sub Newco contained in this Agreement and in any document delivered in connection herewith shall be true and correct in all material respects at (except that representations and warranties qualified by materiality shall be true and correct in all respects) as of the Effective Time Closing Date, except (A) for changes specifically permitted by this Agreement and (B) that those representations and warranties which address matters only as if made at of a particular date shall remain true and correct in all material respects as of such time, except as contemplated by this Agreement, and Company shall have received a certificate of the Chairman of the Board, the President or an Executive Vice President of Parent as to the satisfaction of this conditiondate. (b) Company The ESOP shall have received an opinion of Debevoise & Xxxxxxxx, counsel performed or complied with all agreements and conditions contained in this Agreement required to Company, in form and substance reasonably satisfactory to Company, dated be performed or complied with by it on or about the date of the mailing of the Proxy Statement prior to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion Debevoise & Xxxxxxxx may require and rely upon representations contained in certificates of officers of Parent and Company and others, as well as certificates of stockholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others. (c) The ESOP shall have delivered to the Company a certificate, dated the Closing Date, signed by the Trustee, certifying as to the fulfillment of the conditions specified in Sections 7.2(a) and 7.2(b). (d) The Company shall have received an opinion from Xxxxx X. Xxxxx, Senior Vice President, General Counsel the Financing on terms substantially as outlined in the Commitment Letters and Secretary of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel shall have sufficient financing thereunder to Parent, dated consummate the Effective Time, to the effect that: (i) Each of Parent and Sub is a corporation validly existing under the laws of the state of its incorporationMerger. (iie) Each of Parent and Sub has the corporate power The ESOP shall not have consented to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation permit any of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on ESOP participants to be treated as a dissenting shareholder as set forth in Section 1573(b) of the part BCL and Chapter 15, Subchapter D of Parent and Subthe BCL (regarding dissenters rights), generally. (iiif) This Agreement has been executed The ESOP shall have obtained all material consents, waivers, approvals, authorizations or orders and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Submade all filings required in connection with the authorization, enforceable against Parent and Sub in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent the ESOP and Sub, nor the consummation by Parent and Sub it of the transactions contemplated hereby, will violate the charter documents or By-Laws of Parent or Sub or, to the best knowledge of such counsel, and except as set forth in the Parent Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either all applicable notice periods shall have been obtained by Parent or Sub, as the case may be, prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinionexpired. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance and, when issued as contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Parent and Sub and of public officials and opinions of local counsel, reasonably acceptable to Company. (d) The listing application referred to in Section 7.3(b) shall have been approved by the New York Stock Exchange. (e) Parent shall have executed and delivered the Registration Rights Agreements, substantially in the form of Exhibit B hereto.

Conditions to Obligation of Company to Effect the Merger. The -------------------------------------------------------- obligation of the Company to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Each of Parent and Sub The Purchaser shall have performed in all material respects its obligations under agreements contained in this Agreement required to be performed by it at on or prior to the Effective Time Closing Date, and the representations and warran- ties warranties of Parent and Sub the Purchaser contained in this Agreement and in any document delivered in connection herewith shall be true and correct as of the Closing Date, except (i) for changes specifically permitted by this Agreement or otherwise accepted in writing by the Company, (ii) for non-performance or breaches which, separately or in the aggregate, would not have a Material Adverse Effect on the Purchaser or on the ability of the parties to consummate the transactions contemplated by this Agreement and (iii) that those representations and warranties which address matters only as of a particular date shall remain true and correct, in all material respects at and as of the Effective Time as if made at and respects, as of such time, except as contemplated by this Agreement, and date. (b) The Company shall have received a certificate of the Chairman of the Board, the President or an Executive a Vice President of Parent as to the satisfaction of this condition. (b) Company shall have received an opinion of Debevoise & Xxxxxxxx, counsel to Company, in form and substance reasonably satisfactory to CompanyPurchaser, dated on or about the date of the mailing of the Proxy Statement to stockholdersClosing Date, which opinion shall be reconfirmed as of the Effective Time, substantially certifying to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion Debevoise & Xxxxxxxx may require and rely upon representations contained in certificates of officers of Parent and Company and others, as well as certificates of stockholders who beneficially own five percent or more of the votes or value of any class of stock of Company and otherspreceding clause (a). (c) The Board of Directors of the Company shall have received an opinion from Xxxxx X. Xxxxx, Senior Vice President, General Counsel a certificate of the President and Secretary the Chief Financial Officer of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to Parentthe Company, dated the Effective Timethat Closing Date, certifying to the effect that:of clause (a) of Section 6.3 insofar as it relates to the representations and warranties of the Company contained in this Agreement or in any document delivered in connection herewith. (d) There shall not have been any action taken, or any statute, rule, regulation, order, judgment or decree proposed, enacted, promulgated, entered, issued, or enforced by any Governmental Entity, and there shall be no action, suit or proceeding pending (with a reasonable likelihood of success), which (i) Each of Parent and Sub is a corporation validly existing under makes this Agreement, the laws Merger, or any of the state of its incorporation. (ii) Each of Parent and Sub has the corporate power to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Parent and Sub. (iii) This Agreement has been executed and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Sub, enforceable against Parent and Sub in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent and Sub, nor the consummation by Parent and Sub of the transactions contemplated hereby, will violate the charter documents or By-Laws of Parent or Sub or, to the best knowledge of such counsel, and except as set forth in the Parent Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Parent or Sub, as the case may be, prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinion. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance andillegal or imposes or may impose material damages or penalties in connection therewith, when issued as or (ii) otherwise prohibits, restricts, or delays consummation of the Merger or any of the other transactions contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained Agreement in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Parent and Sub and of public officials and opinions of local counsel, reasonably acceptable to Company. (d) The listing application referred to in Section 7.3(b) shall have been approved by the New York Stock Exchangerespect. (e) Parent Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxx-Xxxx, Xxxxx Xxxxx-Xxxx, Xxxxxxx Xxxxx-Xxxx, Xxx Xxxxx-Xxxx, and the Xxxxx-Xxxx Family Trust (collectively, the "Proponents") shall have executed and delivered transferred their shares of Firecom Stock to the Registration Rights Agreements, substantially in the form of Exhibit B heretoPurchaser.

Conditions to Obligation of Company to Effect the Merger. The obligation of Company to effect the Merger shall be is subject to the satisfaction at (or waiver by Company in its sole discretion) on or prior to the Effective Time Closing Date of the following additional further conditions: (a) Each of Parent and Sub shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warran- ties warranties of Parent and Sub contained set forth in this Agreement that is qualified by a Material Adverse Effect on Parent shall be true and correct at and as of the Closing Date as if made at and as of the Closing Date and each of such representations and warranties that is not so qualified shall be true and correct in all material respects at and as of the Effective Time Closing Date as if made at and as of such timethe Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as contemplated of such earlier date. (b) Parent and Merger Sub shall have performed or complied with in all material respects all obligations required to be performed or complied with by them under this Agreement, and Agreement at or prior to the Closing Date. Company shall have received a certificate of the Chairman of the Board, the President or an Executive Vice President signed on behalf of Parent as by the Chief Executive Officer of Parent to the satisfaction of this conditionsuch effect. (bc) There shall not have occurred any event, occurrence or change that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent. (d) Company shall have received an opinion from the Chief Executive Officer of Debevoise & XxxxxxxxParent, counsel to Company, in form and substance reasonably satisfactory to Company, a certificate dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective TimeClosing Date, substantially to certifying the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) satisfaction of the Code. In rendering such opinion Debevoise & Xxxxxxxx may require and rely upon representations contained conditions set forth in certificates Section 8.3 of officers of Parent and Company and others, as well as certificates of stockholders who beneficially own five percent or more of the votes or value of any class of stock of Company and othersthis Agreement. (ce) Company shall have received an opinion releases from Xxxxx X. Xxxxx, Senior Vice President, General Counsel and Secretary of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to Parent, dated the Effective Time, to the effect that: (i) Each current executive officers of Parent under any and Sub is a corporation validly existing under all agreements they might have with the laws of the state Parent or any of its incorporationSubsidiaries, except as contemplated by Section 1.4 and except for any and all rights of indemnification. (iif) Each The holders of Parent and Sub has the corporate power no more than 100,000 Dissenting Shares shall be in a position to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Parent and Sub. (iii) This Agreement has been executed and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Sub, enforceable against Parent and Sub in accordance with its terms, except (A) perfect their dissenters' rights under DGCL as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent and Sub, nor the consummation by Parent and Sub of the transactions contemplated hereby, will violate the charter documents or By-Laws of Parent or Sub or, to the best knowledge of such counsel, and except as set forth in the Parent Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Parent or Sub, as the case may be, determined just prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinionTime. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance and, when issued as contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Parent and Sub and of public officials and opinions of local counsel, reasonably acceptable to Company. (d) The listing application referred to in Section 7.3(b) shall have been approved by the New York Stock Exchange. (e) Parent shall have executed and delivered the Registration Rights Agreements, substantially in the form of Exhibit B hereto.

Conditions to Obligation of Company to Effect the Merger. The Unless ---------------------------------------------------------- waived in writing by Company, the obligation of Company to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Each of Parent and Acquisition Sub shall have performed in all material respects its obligations under their covenants contained in this Agreement required to be performed by it at or prior to the Effective Time and Time. (b) the representations and warran- ties warranties of Parent and Acquisition Sub contained in this Agreement shall be true and correct when made, and the representations and warranties set forth in all material respects at Article V above shall be true and correct as of the Effective Time as if made at and as of such time, except as expressly contemplated or permitted by this Agreement, except for representations and Company shall have received warranties relating to a certificate of the Chairman of the Board, the President time or an Executive Vice President of Parent as to the satisfaction of this condition. (b) Company shall have received an opinion of Debevoise & Xxxxxxxx, counsel to Company, in form and substance reasonably satisfactory to Company, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of times other than the Effective TimeTime which were or will be true and correct at such time or times and except where the failure or failures of such representations and warranties to be so true and correct, substantially individually or in the aggregate, does not result or would not result in a Material Adverse Effect without taking into consideration any materiality or knowledge qualifier that applies to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion Debevoise & Xxxxxxxx may require and rely upon representations contained in certificates of officers of Parent and Company and others, as well as certificates of stockholders who beneficially own five percent representation or more of the votes or value of any class of stock of Company and otherswarranty. (c) Company Parent and Acquisition Sub shall have received an opinion from Xxxxx X. Xxxxx, Senior Vice President, General Counsel and Secretary of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to Parent, furnished Company a certificate dated the Effective Timedate of the Closing, to signed on its behalf by the effect that: (i) Each Chief Executive Officer, President or Chief Financial Officer of Parent and Sub is a corporation validly existing under the laws of the state of its incorporation. (ii) Each of Parent and Sub has the corporate power to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Parent and Sub. (iii) This Agreement has been executed and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Acquisition Sub, enforceable against Parent and Sub in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent and Sub, nor the consummation by Parent and Sub of the transactions contemplated hereby, will violate the charter documents or By-Laws of Parent or Sub orapplicable, to the best of their knowledge of such counseland belief after due inquiry, and except as that the conditions set forth in the Parent Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall Section 7.2(a) and -------------- Section 7.2(b) above have been obtained by Parent or Sub, as the case may be, prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinion. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance and, when issued as contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statementsatisfied. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Parent and Sub and of public officials and opinions of local counsel, reasonably acceptable to Company.--------------- (d) The listing application referred Parent shall have funded the payment in full of all amounts due and owing by the Company pursuant to the Company's Senior Subordinated Convertible Notes due January 31, 2009 and the Fleet Credit Agreement and for the purchase of the Company Warrants set forth in Section 7.3(b) shall have been approved by the New York Stock Exchange.3.1(e). -------------- (e) Parent shall have executed funded the payment of all of the Company's severance payment obligations which are payable upon the Merger and delivered the Registration Rights AgreementsCashless Exercise Consideration as set forth in Section 3.1(d). Company -------------- acknowledges that it is the Closing of the Merger that shall trigger any severance payment obligations, substantially in and not the form execution of Exhibit B heretothis Agreement.

Conditions to Obligation of Company to Effect the Merger. The -------------------------------------------------------- obligation of the Company to effect the Merger shall will be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Each (i) The representations and warranties of Parent and Sub shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warran- ties of Parent and Merger Sub contained in this Agreement shall have been true and correct in all material respects as of the date hereof and (ii) the representations and warranties of Parent and Merger Sub contained in this Agreement and in any document delivered in connection herewith shall be true and correct in all material respects at and as of the Effective Time Closing Date, except (A) for changes specifically permitted by this Agreement and (B) that those representations and warranties which address matters only as if made at of a particular date shall remain true and correct in all material respects as of such time, except as contemplated by this Agreement, and Company shall have received a certificate of the Chairman of the Board, the President or an Executive Vice President of Parent as to the satisfaction of this conditiondate. (b) Each of Parent and Merger Sub shall have performed or complied in all material respects with all agreements and conditions contained in this Agreement required to be performed or complied with by it on or prior to the Closing Date. (c) Parent and Merger Sub shall have delivered to the Company a certificate, dated the date of the Closing, signed by the President or any Vice President of each of Parent and Merger Sub, certifying as to the fulfillment of the conditions specified in Section 7.2(a) and (b). (d) From the date of this Agreement through the Effective Time, there shall not have occurred any material adverse change in the business or properties of Parent and its Subsidiaries. (e) Parent and Merger Sub shall have obtained all material consents, waivers, approvals, authorizations or orders and made all filings in connection with the authorization, execution and delivery of this Agreement by Parent and Merger Sub and the consummation by each of the transactions contemplated hereby. (f) The Company shall have received an opinion of Debevoise Xxxxxx Xxxxxxx Xxxxxxxx & XxxxxxxxXxxxxx, counsel to CompanyProfessional Corporation, in form and substance reasonably satisfactory to the Company, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization be treated for Federal federal income tax purposes as a reorganization within the meaning of section Section 368(a) of the Code. In rendering such opinion Debevoise & Xxxxxxxx may require and rely upon representations contained in certificates of officers of Parent and Company and others, as well as certificates of stockholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others. (c) Company shall have received an opinion from Xxxxx X. Xxxxx, Senior Vice President, General Counsel and Secretary of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to Parent, dated the Effective Time, to the effect that: (i) Each of Parent and Sub is a corporation validly existing under the laws of the state of its incorporation. (ii) Each of Parent and Sub has the corporate power to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Parent and Sub. (iii) This Agreement has been executed and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Sub, enforceable against Parent and Sub in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent and Sub, nor the consummation by Parent and Sub of the transactions contemplated hereby, will violate the charter documents or By-Laws of Parent or Sub or, to the best knowledge of such counsel, and except as set forth in the Parent Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Parent or Sub, as the case may be, prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinion. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance and, when issued as contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware corporate law, such counsel may rely upon on, and both of the certificates of officers Company and directors of Parent and Merger Sub and of public officials and opinions of local counselshall make, reasonably acceptable to Company. (d) The listing application referred to in Section 7.3(b) shall have been approved by the New York Stock Exchange. (e) Parent shall have executed and delivered the Registration Rights Agreements, those representations substantially in the form contained in Exhibits E and F respectively, and all of Exhibit B heretosuch representatives shall be true as of the Effective Time.

Conditions to Obligation of Company to Effect the Merger. The Unless waived in writing by Company, the obligation of Company to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Each of Parent and Acquisition Sub shall have performed in all material respects its obligations under their covenants contained in this Agreement required to be performed by it at or prior to the Effective Time and Time. (b) the representations and warran- ties warranties of Parent and Acquisition Sub contained in this Agreement shall be true and correct when made, and the representations and warranties set forth in all material respects at Article V above shall be true and correct as of the Effective Time as if made at and as of such time, except as expressly contemplated or permitted by this Agreement, except for representations and Company shall have received warranties relating to a certificate of the Chairman of the Board, the President time or an Executive Vice President of Parent as to the satisfaction of this condition. (b) Company shall have received an opinion of Debevoise & Xxxxxxxx, counsel to Company, in form and substance reasonably satisfactory to Company, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of times other than the Effective TimeTime which were or will be true and correct at such time or times and except where the failure or failures of such representations and warranties to be so true and correct, substantially individually or in the aggregate, does not result or would not result in a Material Adverse Effect without taking into consideration any materiality or knowledge qualifier that applies to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion Debevoise & Xxxxxxxx may require and rely upon representations contained in certificates of officers of Parent and Company and others, as well as certificates of stockholders who beneficially own five percent representation or more of the votes or value of any class of stock of Company and otherswarranty. (c) Company Parent and Acquisition Sub shall have received an opinion from Xxxxx X. Xxxxx, Senior Vice President, General Counsel and Secretary of Parent, or from Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel to Parent, furnished Company a certificate dated the Effective Timedate of the Closing, to signed on its behalf by the effect that: (i) Each Chief Executive Officer, President or Chief Financial Officer of Parent and Sub is a corporation validly existing under the laws of the state of its incorporation. (ii) Each of Parent and Sub has the corporate power to enter into this Agreement and the Registration Rights Agreements and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Parent and Sub. (iii) This Agreement has been executed and delivered by each of Parent and Sub and is a valid and binding obligation of each of Par- ent and Acquisition Sub, enforceable against Parent and Sub in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. Each of the Registration Rights Agreements has been executed and delivered by Parent. (iv) Neither the execution and delivery of this Agreement by Parent and Sub, nor the consummation by Parent and Sub of the transactions contemplated hereby, will violate the charter documents or By-Laws of Parent or Sub orapplicable, to the best of their knowledge of such counseland belief after due inquiry, and except as that the conditions set forth in the Parent Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall Section 7.2(a) and Section 7.2(b) above have been obtained by Parent or Sub, as the case may be, prior to the Effective Time or shall have been waived by Company in writing) any material contract, agreement or instrument to which Parent or Sub, as the case may be, is subject and which has been specifically identified to such counsel by Parent or Sub, as the case may be, in connection with rendering such opinion. (v) The Parent Shares to be issued in connection with the transactions contemplated by this Agreement are duly authorized and reserved for issuance and, when issued as contemplated by this Agreement, will be validly issued, fully paid and nonassessable. (vi) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Parent, or for the accuracy completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein with respect to information in the Registration Statement or the Proxy Statement relating to Parent, the Registration Statement complies as to form in all material respects with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder; and In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Nevada or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Parent and Sub and of public officials and opinions of local counsel, reasonably acceptable to Companysatisfied. (d) The listing application referred Parent shall have funded the payment in full of all amounts due and owing by the Company pursuant to the Company's Senior Subordinated Convertible Notes due January 31, 2009 and the Fleet Credit Agreement and for the purchase of the Company Warrants set forth in Section 7.3(b) shall have been approved by the New York Stock Exchange3.1(e). (e) Parent shall have executed funded the payment of all of the Company's severance payment obligations which are payable upon the Merger and delivered the Registration Rights AgreementsCashless Exercise Consideration as set forth in Section 3.1(d). Company acknowledges that it is the Closing of the Merger that shall trigger any severance payment obligations, substantially in and not the form execution of Exhibit B heretothis Agreement.