Common use of Conditions to Obligation of Parent and Merger Sub to Effect the Merger Clause in Contracts

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The representations and warranties of the Company shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The representations and warranties of the Company shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment at or waiver in writing by Parent and Merger Sub prior to the Closing Date of the following conditions: (a) The Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date, the representations and warranties of the Company shall be true and correct at and as of the date of contained in this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and warranties to be so true and correct (without giving effect to in any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or document delivered in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) connection herewith shall be true and correct in all material respects and (ii) as of the Closing Date, except that those representations and warranties contained in Section 3.2 (Capital Stock) which address matters only as of a particular date shall be have been true and correct in all respectsas of such date, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as Parent shall have received a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence certificate of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote an executive officer of the Company Shareholders Under Applicable Law) shall be true and correct in all respects;Company, dated the Closing Date, certifying to such effect. (b) The Holders of not less than fifty-five percent (55%) of the Company Common Stock outstanding as of the Record Date shall have entered into voting agreements, in form and substance satisfactory to Parent, pursuant to which such holders shall have agreed to vote, or cause their shares to be voted, in favor of the Merger at the Stockholders' Meeting. Each such holder shall have complied in all material respects performed all obligations and complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or under such voting agreement. (c) Holders of not more than five percent (5%) of the shares of Company Common Stock outstanding immediately prior to the Effective Time; andTime shall have exercised their rights as Dissenting Shareholders. (cd) The Company Stock Purchase Plan shall have delivered to Parent a certificate, dated the Effective Time been terminated and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions stock and/or cash distributed thereunder as set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and3.2(d)(iv). (e) Since From the date of this AgreementAgreement through the Effective Time, there shall not have been any occurred a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect consummate the Merger is further are also subject to the fulfillment satisfaction or waiver in writing (to the extent permitted by Parent and Merger Sub applicable Law) at or prior to the Effective Time of each of the following conditions: (a) (i) The representations and warranties of made by the Company herein (other than the representations and warranties subject to clause (ii)), disregarding all qualifications and exceptions contained in such representations and warranties relating to materiality or Company Material Adverse Effect or words of similar import (other than the Company Retained Qualifiers), shall be true and correct at and as of the date of this Agreement hereof and at on the Closing Date with the same effect as if made on and as of the Closing Date as though such date (except for representations and warranties that are made at and as of a specified date (including the Closing Datedate of this Agreement), which shall be true and correct only as of such specified date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be likely to result in a Company Material Adverse Effect; provided, however, that Effect and (ii) the representations and warranties of the Company contained in (x) the first two sentences of Section 4.02 and (y) Section 4.03 shall be true and correct in all respects (other than de minimus inaccuracies) as of the date hereof and on the Closing Date with the same effect as if made on and as of such date (except for representations and warranties that are made as of a specified date or period (including the date of this Agreement), which shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etcdate).) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have performed in all material respects performed all obligations covenants and agreements, and complied in all material respects with all covenants required by obligations, contained in this Agreement that are to be performed or complied with by it at or prior to or on the Effective Time; andClosing Date. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there There shall not have been any Company Material Adverse Effect; providedEffect or any event, howeverchange or effect that would, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects individually or occurrences that are set forth in the Company Disclosure Schedule (aggregate, reasonably be likely to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether result in a Company Material Adverse Effect has occurredEffect. (d) Parent shall have received a certificate of the Company, dated as of the Closing Date, signed by an executive officer of the Company to the effect that the conditions set forth in Section 8.03(a) and Section 8.03(b) have been satisfied. (e) The closing of the Sprint Transactions, as contemplated by the Sprint Master Agreement, shall have occurred at, or will occur immediately after, the Effective Time in accordance with the Sprint Agreements.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment or waiver (to the extent permitted by Applicable Law and in writing by Parent and Merger Sub accordance with the provisions hereof) at or prior to the Closing Date of the following conditions: (a) The representations and warranties of the Company contained in this Agreement (i) that are qualified as to materiality or a Company Material Adverse Effect shall be true and correct at as so qualified, and (ii) that are not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where to the failure of extent such representations and warranties expressly relate to be so true and correct an earlier date (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only which case as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etcearlier date).) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have performed, in all material respects performed all obligations respects, the covenants and complied with all covenants required by agreements contained in this Agreement required to be performed or complied with by it at on or prior to the Effective Time; andClosing Date. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than At any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since time after the date of this Agreement, there shall not have been occurred and be continuing as of the Closing Date, any change, event, occurrence, state of facts or development that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect; provided. (d) Parent shall have received a certificate of the Company, howeverexecuted on its behalf by its Chief Executive Officer or Chief Financial Officer, thatdated the Closing Date, for certifying to the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences effect that are the conditions set forth in Section 8.3(a), (b) and (c) have been satisfied. (e) The authorizations, consents or approvals identified in Section 8.3(e) of the Company Disclosure Schedule Letter shall have been obtained and evidence thereof reasonably satisfactory to Parent shall have been delivered to Parent. (to f) The officers of the extent that it is reasonably apparent that such disclosure is relevantCompany and its Subsidiaries named in Section 7.15(a)(ii) will not be taken of the Parent Disclosure Letter shall have entered into account for purposes of determining whether a Company Material Adverse Effect has occurredemployment agreements with the Surviving Entity as provided in Section 7.15(a)(ii).

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The representations and warranties of the Company with respect to itself and its Subsidiaries set forth herein shall be true and correct at and as of the date of this Agreement both when made and at and as of the Closing Date Date, as though if made at and as of such time (except to the Closing Dateextent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effectmaterial adverse effect” qualification qualifiers set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; andDate. (c) During the period from the date of this Agreement to the Closing Date, there shall not have occurred any Company Material Adverse Effect that continues to exist on the Closing Date and as of the Effective Date. (d) The equity capitalization of the Company and its Subsidiaries (including all subscriptions, options, warrants, calls, convertible securities or other similar rights, agreements or commitments relating to the issuance of capital stock by the Company or any Subsidiary) shall, as of the Closing Date and not as of the earlier dates set forth in Section 3.2, be as set forth in Section 3.2 and in Section 3.2 of the Company Disclosure Schedule. (e) The Company shall have delivered to Parent a certificate, dated the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a), 6.3(b), 6.3(c) and Section 6.3(b6.3(d) have been satisfied;. (df) Parent and Merger Sub shall have received been furnished with the proceeds opinion of Xxxx, Plant & Xxxxx, counsel to the Company, as dated of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this AgreementClosing Date, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes form of determining whether a Company Material Adverse Effect has occurredExhibit C attached hereto.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment (or the waiver in writing by Parent and Merger Sub Parent) at or prior to the Effective Time of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than in Sections 3.1(c), 3.1(d) and 3.7(b)) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to “materiality,” the Company Material Adverse Effect and similar qualifiers contained in such representations and warranties) would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) Sections 3.1(c) and 3.1(d) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations for any de minimis inaccuracies, and warranties to (iii) Section 3.7(b) shall be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, both at and would not reasonably be expected to have, individually or in as of the aggregate, a Company Material Adverse Effectdate of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a specified particular date or period shall need be so true and correct (in the manner set forth in clauses (i), (ii) and (iii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied;. (d) Parent and Merger Sub shall have received All consents of, or filings with, the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are Governmental Entities set forth in Schedule 6.3(d) shall have been obtained and any applicable waiting period with respect thereto shall have expired or been terminated, as the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredcase may be.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment or waiver in writing by Parent and Merger Sub at or prior to the Closing Date of the following conditions: conditions that (ai) The the Company shall have performed, in all material respects, its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date, (ii) (x) the representations and warranties of the Company set forth in Section 3.1 shall be true and correct in all respects (except, in each such case, for any inaccuracies that are de minimis in the aggregate) at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date) and (y) the representations and warranties of the Company set forth in Section 3.2 and Section 3.3 shall be true and correct in all respects (except, in each such case, for any inaccuracies that are de minimis in the aggregate) both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), (iii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Section 3.1, Section 3.2 and Section 3.3) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except in the case of this clause (iii) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have), individually or in the aggregate, has not had, and would not be reasonably likely to have or result in, a Company Material Adverse Effect; provided, howeverand (iv) Parent shall have received a certificate of the Company, that representations and warranties that are made as executed on its behalf by its President or one of a specified date or period shall be so true and correct as described above only as its Vice Presidents, dated the Closing Date, certifying the satisfaction of such specified date or period; and provided further, however, that the conditions set out in clauses (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredhereof.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment (or waiver in writing by Parent and Merger Sub Sub) of the following conditions: (a) (i) The representations and warranties of the Company contained in Section 3.2 (Capital Stock), Section 3.3 (Corporate Authority; No Violation), Section 3.17 (Opinion of Financial Advisor), Section 3.18 (Required Vote of the Company Stockholders), Section 3.20 (Finders and Brokers) and Section 3.21 (State Takeover Statutes) shall be true and correct in all respects (except, in the case of Section 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, and (ii) the representations and warranties of the Company set forth in this Agreement (other than in clause (i) above) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied;. (d) Parent and Merger Sub Since the date of this Agreement there shall not have received the proceeds of the Financing as contemplated by the Financing Commitments; andbeen any Company Material Adverse Effect. (e) Since the date of this Agreement, (i) the Company and each of its Subsidiaries shall not have violated any applicable Environmental Laws, and (ii) to the Company’s Knowledge, there shall not have been any release of any Hazardous Substance by the Company or any of its Subsidiaries in any manner that, in the case of either clause (i) or clause (ii) could reasonably be expected to give rise to any remedial obligation, corrective action requirement, penalty, fine, judgment, or other liability of any kind that would result in a Company Material Adverse Effect, or subject the Company or any of its Subsidiaries to any obligation in excess of $200,000. (f) Since the date of this Agreement, there shall not have been any recommendation, report, judgment or order, issued by any court of competent jurisdiction, subjecting or proposing to subject the Company Material Adverse Effect; providedor any of its Subsidiaries to any obligation exceeding by more than $200,000 the amount of the litigation reserve reflected in the consolidated balance sheet of the Company and its Subsidiaries as of December 31, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth 2012 contained in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredSEC Documents.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is are further subject to the fulfillment (or written waiver in writing by Parent and Merger Sub Parent) of the following conditions: (a) (i) The representations and warranties of the Company shall set forth in this Agreement which are qualified by a “Company Material Adverse Effect” qualification will be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement which are not qualified by a “Company Material Adverse Effect” qualification will be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of for such representations and warranties failures to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does as would not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectEffect (except that the representations and warranties contained in the second sentence of Section 3.2(a) and the last sentence of Section 3.2(a) will be true and correct in all material respects); provided, however, that that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a specified particular date or period shall will be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall will have performed in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall will have delivered to Parent a certificate, dated the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a) and Section 6.3(b) have been satisfied;. (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been occurred any event or events that have had or are reasonably likely to have a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The Each of the representations and warranties of the Company (i) set forth in Sections 3.1(a), 3.2(a), 3.2(b) (in the case of Section 3.2(b) of the Company Disclosure Letter, solely the information regarding the number of shares and exercise prices of the Company Stock Options), 3.2(c), 3.4(a), 3.4(c)(ii), 3.19 and 3.22 of the Agreement (the “Specified Sections”) shall be true and correct at and in all material respects, in each case, as of the date of this Agreement and at and as of the Closing Date as though made at on and as of the Closing DateDate (provided that, to the extent any such representation or warranty speaks as of a specified date, it need only be true and correct as of such specified date), (ii) set forth in Section 3.12(c) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date and (iii) set forth in this Agreement (other than the Specified Sections and Section 3.12(c)) shall be true and correct (provided that any representation or warranty of the Company contained herein that is subject to a materiality, Material Adverse Effect or similar qualification shall not be so qualified for purposes of this paragraph) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (provided that, to the extent any such representation or warranty speaks as of a specified date, it need only be true and correct as of such specified date), except in each case of this clause (iii) only where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does do not have, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (ai) The representations and warranties of the Company contained in Section 3.1 (Qualification, Organization, Subsidiaries, etc.), Section 3.2 (Capital Stock), Section 3.3 (Subsidiaries), Section 3.4(a) (Corporate Authority), Section 3.12(a)(ii) (Absence of Certain Changes or Events), Section 3.21 (Required Vote of the Company Shareholders), and Section 3.24 (State Takeover Statutes; Rights Plan) shall be true and correct in all respects (except, in the case of Sections 3.1(a), 3.2 and 3.3 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Company Material Adverse Effect qualifiers contained therein) as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and or warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) or (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), 6.3(b) and Section 6.3(b6.3(d) have been satisfied;. (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, Agreement there shall not have been any a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.;

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation Only if the Acceptance Time shall not have occurred, the obligations of Parent and Merger Sub to effect consummate the Merger is shall be further subject to the fulfillment satisfaction (or waiver in writing by Parent and Merger Sub Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of the following conditions: (a) (i) The representations and warranties of the Company set forth in Article IV (other than Section 4.1, Section 4.2, Section 4.3, Section 4.4(a), Section 4.5(a), Section 4.7(a), Section 4.15, Section 4.22 and Section 4.25) shall be true and correct (without regard to “materiality” Material Adverse Effect and similar qualifiers contained in such representations and warranties) at and as of the date of this Agreement and at and as of the Merger Closing Date as though made at and as of the Closing Datesuch times, except where for such failures to be true and correct as would not have, in the failure of such aggregate, a Material Adverse Effect on the Company, (ii) the representations and warranties to set forth in Section 4.4(a) shall be so true and correct (without giving effect regard to any “materiality” or “Company Material Adverse Effect” qualification Effect and similar qualifiers contained in such representations and warranties), except for any de minimis inaccuracies and other than with respect to any issuances permitted pursuant to this Agreement at and as of the date of this Agreement and at and as of the Merger Closing as though made at and as of such times, (iii) the representations and warranties set forth therein) does not havein Section 4.1, Section 4.2, Section 4.3, Section 4.5(a), Section 4.15 and would not reasonably Section 4.22 shall be expected true and correct (without regard to have, individually or in the aggregate, a Company “materiality,” Material Adverse EffectEffect and similar qualifiers contained in such representations and warranties) in all material respects at and as of the date of this Agreement and at and as of the Merger Closing as though made at and as of such times and (iv) the representations and warranties set forth in Section 4.6(a) and Section 4.25 shall be true and correct at and as of the Merger Closing as if made at and as of such time; provided, however, that with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i), (ii), (iii) and (iv) above, as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have performed in all material respects performed all its obligations and complied with all covenants required by agreements under this Agreement and shall have complied in all material respects with the covenants to be performed or and complied with by it under this Agreement at or prior to the Effective Time; andMerger Closing. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been occurred any Company Events that have had or would have a Material Adverse Effect; provided, however, that, for Effect on the purposes Company. (d) The Company shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by the Chief Financial Officer of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences the Company to the effect that are the conditions set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevantSections 7.3(a), 7.3(b) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredand 7.3(c) have been satisfied.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment at or waiver in writing by Parent and Merger Sub prior to the Closing Date of the following conditions: (a) The Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date, the representations and warranties of the Company shall be true and correct at and as of the date of contained in this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and warranties to be so true and correct (without giving effect to in any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or document delivered in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) connection herewith shall be true and correct in all material respects and (ii) as of the Closing Date, except that those representations and warranties contained in Section 3.2 (Capital Stock) which address matters only as of a particular date shall be have been true and correct in all respectsas of such date, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as Parent shall have received a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence certificate of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote an executive officer of the Company Shareholders Under Applicable Law) shall be true and correct in all respects;Company, dated the Closing Date, certifying to such effect. (b) The Company Parent shall have received a letter of Arthxx Xxxexxxx XXX, its independent public accountants, dated as of the Closing Date, in all material respects performed all obligations form and complied substance reasonably satisfactory to Parent, stating that such accountants concur with all covenants required by this Agreement management's conclusion that the Merger will qualify as a transaction to be performed or complied accounted for in accordance with by it at or prior to the Effective Time; andpooling of interests method of accounting under the requirements of APB No. 16. (c) The Company Parent shall have delivered received, prior to the effective date of the Registration Statement, the opinion of Thelxx Xxxx & Xriest LLP, counsel to Parent and Merger Sub, to the effect that the Merger will be treated for federal income tax purposes as a certificate, dated reorganization within the Effective Time and signed by a senior executive officer meaning of section 368(a) of the Company (other than any Affiliate of Parent)Code, certifying and that the conditions Company, Parent and Merger Sub each will be a party to that reorganization within the meaning of section 368(b) of the Code, and such firm shall have reconfirmed such opinion as of the Closing Date. In rendering such opinion, Thelxx Xxxx & Xriest LLP may require and rely upon such certificates of the Company, Parent and Merger Sub and/or their respective officers or principal stockholders as are customary for such opinions. (d) The Stock Purchase Plan shall have been terminated and any stock and/or cash distributed thereunder as set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and3.2(d)(iv). (e) Since From the date of this AgreementAgreement through the Effective Time, there shall not have been any occurred a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation respective obligations of Parent and Merger Sub to effect the Merger is further are subject to the fulfillment satisfaction or waiver in writing (to the extent permitted by Parent and Merger Sub applicable Law) at or prior to the Effective Time of each of the following conditions: (a) The representations and warranties of the Company set forth in (i) Section 3.3(a) and (d) (Capital Stock) and the first sentence of Section 3.9 (Absence of Certain Developments) shall be true and correct at in all respects, except, in the case of Section 3.3(a) and (d) (Capital Stock), for de minimis inaccuracies, as of the date Closing Date (except to the extent that any such representation and warranty expressly speaks as of this Agreement an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), (ii) Section 3.1(a) (Organization and Corporate Power), Section 3.2 (Authorization; Xxxxx and Binding Agreement), Section 3.4(a) (Subsidiaries), Section 3.5(a) (No Breach), solely with respect to the Athol Property, Section 3.11(a) (Title to Tangible Properties), and Section 3.23 (Brokerage), shall be true and correct in all material respects (without regard to any qualifications or exceptions contained as to materiality or Company Material Adverse Effect contained in such representations and warranties), as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) and (iii) all other representations and warranties of the Company set forth in ARTICLE III shall be true and correct both when made and at and as of the Closing Date Date, as though if made at and as of such time (except to the Closing Dateextent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect regard to any “materiality” qualifications or “exceptions contained as to materiality or Company Material Adverse Effect contained in such representations and warranties) would not have, individually or in the aggregate, a Company Material Adverse Effect” qualification set forth therein; (b) does The Company shall have performed or complied in all material respects with all covenants and obligations that the Company is required to comply with or to perform under this Agreement at or prior to the Closing Date; (c) The Company shall have delivered to Parent, an executed copy of a customary payoff letter for the Loan and Security Agreement from or on behalf of the lenders with respect thereto, relating to the repayment in full of all obligations thereunder, the termination of such Credit Facility and all commitments in connection therewith and the release of all Liens securing the obligations thereunder (in each case, effective as of the Closing Date); (d) Since the date of this Agreement, there shall not havehave occurred any change, and event, occurrence or effect that, individually or in the aggregate, has had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and (ce) The Company shall have delivered to Parent a certificatecertificate signed by an authorized officer of the Company, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent)Closing Date, certifying that the conditions set forth in Section 6.3(a6.2(a), Section 6.2(b) and Section 6.3(b6.2(d) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment at or waiver in writing by Parent and Merger Sub prior to the Closing Date of the following conditions: (ai) The representations and warranties of the Company shall be true and correct at and as of the date of have performed in all material respects all obligations contained in this Agreement and at and as of the Closing Date as though made at and as of required to be performed on or prior to the Closing Date, except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties of the Company contained in Section 3.2 (Capital Stock) this Agreement shall be true and correct in all respects(without regard to any materiality qualifiers therein) as of the Closing Date (except for changes contemplated by this Agreement and except that those representations and warranties which address matters only as of a particular date shall have been true and correct as of such date), except for such inaccuracies as are de minimis where the failure to be true and correct would not, in nature and amount relative to each such representation and warranty taken as the aggregate, have a whole Company Material Adverse Effect, and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote Parent shall have received a certificate of the Company Shareholders Under Applicable Law) shall be true and correct in all respects;President or a Vice President of the Company, dated the Closing Date, certifying to such effect with respect to the Company. (b) The Company Parent shall have in all material respects performed all obligations and complied with all covenants required by this Agreement received an opinion of Xxxxxx Xxxxxx & Xxxxxxx, special tax counsel to be performed or complied with by it at or prior Parent, dated as of the Closing Date, to the Effective Time; andeffect that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and that no gain or loss will be recognized by a stockholder of the Company on the conversion of Company Common Stock into Parent ADSs and CVRs pursuant to the Merger, except with respect to the CVRs and any cash received in lieu of a fractional share, provided that (i) the Company complies with the reporting requirements contained in Treasury Regulation Section 1.367(a)-3(c)(6) and (ii) the Company stockholder owns (including beneficial, indirect and constructive ownership) less than five percent of the total voting power and total value of Parent's outstanding stock immediately after the Merger. The issuance of such opinion shall be conditioned upon the receipt by such special tax counsel of customary representation letters from each of Parent, Merger Sub, and the Company, in each case in form and substance satisfactory to such special tax counsel. Each such representation letter shall be dated on the date of such opinion and shall not have been withdrawn or modified in any respect. (c) The Since September 30, 1999, other than as set forth in the Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer Reports or Section 3.9 of the Company (other than any Affiliate of Parent)Disclosure Schedule, certifying that through the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this AgreementEffective Time, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether occurred a Company Material Adverse Effect has (or, if a Company Material Adverse Effect shall have occurred, it shall have been cured). (e) Less than 10% of the outstanding shares of Company Common Stock shall be Dissenting Shares.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment at or waiver in writing by Parent and Merger Sub prior to the Closing Date of the following conditions: (a) The Company shall have performed in all respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date, the representations and warranties of the Company contained in this Agreement and in any document delivered in connection herewith shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though if made at and as of on the Closing Date, except where and Parent shall have received a certificate of the President or a Vice President of the Company, dated the Closing Date, certifying to such effect; provided, however, that notwithstanding anything herein to the contrary, this Section 8.3(a) shall be deemed to have been satisfied even if such performance has not occurred or such representations or warranties are not true and correct, unless the failure to perform or the failure of such any of the representations and or warranties to be so true and correct (without giving effect would have or would be reasonably likely to any “materiality” or “Company have a Parent Material Adverse Effect” qualification set forth therein. (b) does The status of any litigation of the Company as described in Schedule 5.14 of the Company Disclosure Schedule and/or the terms of any agreements relating to the compromise or dismissal of any action, suit or proceeding described in Schedule 5.14 of the Company Disclosure Schedule (subject to any restrictions on the disclosure of such terms) shall be satisfactory to Parent. (c) Other than with respect to a default identified in the Company Disclosure Schedule as of the date of this Agreement, the Company shall not havebe in default of any obligation, and would where said default cannot reasonably be expected to havecured by the Closing Date, under any of the Material Contracts, unless any such defaults, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, and Parent shall have received a certificate of the President or a Vice President of the Company, dated the Closing Date, certifying to such effect. (d) All consents and approvals of any third parties required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained and delivered to Parent. 42 (e) The average last sale price per share of Parent Common Stock for the ten (10) trading days prior to the Closing Date shall not be higher than $9.00; provided, however, that representations if this closing condition shall not have been satisfied or waived prior to the Closing Date, Parent shall, if requested by the Company, negotiate in good faith with the Company to make such adjustments to the terms and warranties that are made conditions of this Agreement as would enable Parent to proceed with the Merger on such adjusted terms. (f) The number of Dissenting Shares shall not consist of more than five percent (5%) of the issued and outstanding Company Common Stock. (g) The holders of at least ninety-five percent (95%) of the issued and outstanding Company Common Stock shall have executed and delivered to the Company the Stockholders Agreement (as defined in Section 9.4). (h) There shall have been delivered to Parent a specified date or period shall be so certificate, dated within five days of the Closing Date, of the Secretary of State of the State of Idaho, listing all charter documents of the Company on file in the office of said Secretary of State and copies of the Articles of Incorporation of the Company and all amendments thereto, certified as true and correct as described above only as by said Secretary of such specified date or period; and provided further, however, that State within five days of the Closing Date. (i) There shall have been delivered to Parent a certificate, dated within five days of the representations and warranties contained in Section 3.1(a) (QualificationClosing Date, Organizationof the Secretary of State of the State of Idaho, Subsidiaries, etc.) (with respect to the incorporation, subsistence, and good legal standing of the Company. (j) There shall have been delivered to Parent a certificate, dated within five days of the Closing Date, of the Secretary of State of the State of Idaho or such other jurisdictions, with respect to the authorization by such jurisdiction of the Company only)to transact business in the jurisdictions identified in Schedule 5.1 of the Company Disclosure Schedule. (k) There shall have been delivered to Parent a certificate, dated the Closing Date, of the Secretary of the Company (i) to the effect that the Company's Articles of Incorporation have not been amended since the date of the Certificate referred to in Section 3.20 (Finders or Brokers8.3(h) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and above, (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be attaching a true and correct complete copy of the Company's Bylaws as in all respectseffect on the Closing Date, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) attaching a true and complete copy of the representations resolutions of the Company's Board of Directors approving the execution and warranties contained in Section 3.3(adelivery of this Agreement and authorizing the consummation of the transactions contemplated hereby. (l) (Corporate Authority Relative There shall have been delivered to this Agreement; Noncontravention)Parent a certificate, dated the second sentence Closing Date, with respect to the incumbency and signatures of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote all officers of the Company Shareholders Under Applicable Law) shall be true signing this Agreement and correct any other certificate, agreement or instrument delivered on behalf of the Company in all respects;connection with this Agreement. (bm) The Company There shall have been no change in all material respects performed all obligations and complied with all covenants required by this Agreement the financial condition or results of operations of the Company from that reflected in the Company Balance Sheet so as to be performed or complied with by it at or prior to the Effective Time; andresult in a Company Material Adverse Effect. (cn) The Company shall have delivered to Parent a certificate, dated an opinion of its counsel in the Effective Time and signed by a senior executive officer form attached hereto as Exhibit G. (o) Representatives of the Company (other than any Affiliate shall, in the presence of Parent), certifying have performed a successful live build demonstration of the Software. Such live demonstration shall be reasonably designed and performed so that Parent may have the opportunity to confirm to its satisfaction that the conditions set forth source code version of each of the Software deliverables hereunder readily produces the corresponding object code version. Such build demonstration shall be "successful" if (i) it demonstrates to Parent's reasonable satisfaction the accomplishment of any and all steps as are necessary readily to produce fully functional object code from the source code, including without limitation, any steps in Section 6.3(awhich the source code is compiled, assembled, linked and/or interpreted so as to produce the object code version of such Software, and (ii) such production of object code is otherwise in accordance with the relevant representations and Section 6.3(b) have been satisfied;warranties made by the Company in this Agreement. (dp) Parent and Merger Sub shall have received a letter, in form and substance satisfactory to Parent, from Pacific Crest, (i) stating that Pacific Crest shall look only to the proceeds Company's stockholders for any fees or expenses in excess of $200,000 otherwise payable by the Company to Pacific Crest, (ii) waiving all of Pacific Crest's right to collect any fees or expenses in excess of $200,000 from the Company or Parent, and (iii) agreeing that the Company's $200,000 obligation to Pacific Crest shall be paid as follows: $50,000 at the time of the Financing as contemplated Closing, and the balance of $150,000 on the earlier of 45 days after the Closing or upon the completion of a private placement by Parent of securities of the Financing Commitments; and (e) Since the date Parent with a total value of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredat least $2,000,000.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment (or the waiver in writing by Parent and Merger Sub Parent) at or prior to the Effective Time of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than in Section 3.1(c), Section 3.1(d) and Section 3.7(b)) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to “materiality,” the Company Material Adverse Effect and similar qualifiers contained in such representations and warranties) would not, individually or in the aggregate, have a Company Material Adverse Effect, (ii) Section 3.1(c) and Section 3.1(d) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations for any de minimis inaccuracies, and warranties to (iii) Section 3.7(b) shall be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, both at and would not reasonably be expected to have, individually or in as of the aggregate, a Company Material Adverse Effectdate of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a specified particular date or period shall need be so true and correct (in the manner set forth in clauses (i), (ii) and (iii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The representations and warranties of the Company (i) set forth in (A) Section 3.2(a)(x) and 3.2(b),(c) and (d) shall be true and correct in all material respects, and (B) 3.11(b) shall be true and correct in all respects, as at the date of this Agreement and as of the Closing Date as if made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), and (ii) set forth in this Agreement (other than those described in clause (i) above) shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and at and as of the Closing Date as though made at on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), except, in the Closing Datecase of this clause (ii), except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated as of the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a) and 6.3(a)and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (ai) The representations and warranties of the Company contained in Section 3.1 (Qualification, Organization, Subsidiaries, etc.), Section 3.2 (Capital Stock), Section 3.3 (Subsidiaries and Company Joint Ventures), Section 3.4(a) (Corporate Authority), Section 3.21 (Required Vote of the Company Stockholders), and Section 3.24 (State Takeover Statutes; Charter Provisions) shall be true and correct in all respects (except, in the case of Section 3.1(a), 3.2 and 3.3 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where (ii) the failure of such representations and warranties to be so true and correct of the Company set forth in this Agreement (without giving effect to any “materiality” or other than in clause (i) above) which are qualified by a “Company Material Adverse Effect” or “materiality” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (iii) the representations and warranties of the Company set forth thereinin this Agreement (other than in clause (i) does above) which are not have, and would not reasonably be expected to have, individually or in the aggregate, qualified by a “Company Material Adverse Effect” or “materiality” qualification shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that that, with respect to clauses (i), (ii) or (iii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i), (ii) or (iii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a) and 6.3(a)and Section 6.3(b) have been satisfied;. (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, Agreement there shall not have been occurred and be continuing any Company Material Adverse Effect; provided, however, that, for . (e) Each of the purposes of this approvals listed on Section 6.3(e)) of the Parent Disclosure Letter shall have been obtained, facts, circumstances, events, changes, effects without the imposition of any condition that would have the effect of an Action of Divestiture or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredLimitation.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of each of the following conditions: (a) (i) The representations and warranties of the Company contained in Section 3.2(a), (b) and (c) (Capital Stock), Section 3.4(a) (Corporate Authority), Section 3.24 (Required Vote of the Company Shareholders), Section 3.26 (Finders or Brokers; Transaction Fees) and Section 3.27 (State Takeover Statutes) shall be true and correct in all respects (except, in the case of Section 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Company Material Adverse Effect qualifiers contained therein) as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and or warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) or (ii) hereof, representations and warranties that are Agreement and Plan of Merger made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent)its Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Sections Section 6.3(a), Section 6.3(b) and Section 6.3(b6.3(d) have been satisfied;. (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, Agreement there shall not have been any occurred a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are . (e) All Company Approvals as set forth in on Section 3.4(b) of the Company Disclosure Schedule shall have been made or obtained, as the case may be. (f) All approvals, consents, waivers and agreements of, and filings and notifications to, the third parties identified on Section 6.3(f) of the Company Disclosure Schedule shall have been made or obtained, as the case may be. (g) The Company and its Subsidiaries shall have at least $200,000,000 in aggregate commitments under the Warehouse Facilities and the advance rates thereunder shall not have been materially reduced and the eligibility criteria contained therein shall not have been amended or modified in a manner that is materially adverse to the extent that it is reasonably apparent that such disclosure is relevantCompany and its Subsidiaries. (h) will The Company and its Subsidiaries shall have unrestricted cash and undrawn availability under the Warehouse Facilities of at least $8,500,000 in the aggregate. (i) The number of Dissenting Shares for which demands for appraisal have been made and not be taken into account for purposes been withdrawn shall not exceed 12.5% of determining whether a the outstanding shares of Company Material Adverse Effect has occurredCommon Stock.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (ai) The representations and warranties of the Company contained in Sections 3.1(a), 3.2, 3.21 and 3.24 shall be true and correct in all respects (except, in the case of Sections 3.1(a) and 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than those referred to in clause (i) of this Section 6.3(a)), disregarding all qualifications and exceptions contained therein relating to “Company Material Adverse Effect” or “materiality,” shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where in the case of this clause (ii) the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” would not have or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and; (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a its Chief Financial Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent Since the date of this Agreement there shall not have occurred and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitmentsbe continuing any Company Material Adverse Effect; and (e) Since Holders of no more than ten percent (10%) of the date of this Agreement, there outstanding Company Common Stock shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredDissenting Shareholders.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further are subject to the fulfillment satisfaction or (to the extent permitted by Law) waiver in writing by Parent and or Merger Sub of each of the following conditions: (a) The representations and warranties of the Company set forth in (i) Section 3.3 (Capitalization), Section 3.4 (Authority) and Section 3.24 (Brokers; Certain Fees) shall be true and correct at and in all respects as of the date of this Agreement and at and as of the Closing Date as though made at on and as of such date (except for any such representation or warranty that is expressly made as of a specified date, including the date of this Agreement, in which case such representation or warranty shall be true and correct only as of such specified date), except for de minimis inaccuracies, (ii) Section 3.11(b) (Absence of Certain Changes or Events) shall be true and correct in all respects as of the date of this Agreement and as of the Closing DateDate as though made on and as of such date, (iii) Section 3.5(a)(i) (No Conflict – Governing Documents) shall be true and correct in all material respects (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except for any such representation or warranty that is expressly made as of a specified date, including the date of this Agreement, in which case such representation or warranty shall be true and correct only as of such specified date), and (iv) ARTICLE III (other than the representations and warranties referred to in the foregoing clauses (i), (ii) and (iii)) shall be true and correct in all respects (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on and as of such date (except for any such representation or warranty that is expressly made as of a specified date, including the date of this Agreement, in which case such representation or warranty shall be true and correct only as of such specified date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does has not have, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) Since the date of this Agreement, there has not been any circumstance, fact, change, effect, event, development, inaccuracy, occurrence or other matter that has had or would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. (c) The Company shall have performed in all material respects performed all obligations and complied with all its obligations, agreements or covenants required by this Agreement to be performed or complied with by it at under this Agreement on or prior to before the Effective Time; andClosing. (cd) The Company shall have delivered to Parent a certificate, certificate dated as of the Effective Time and Closing Date signed on behalf of the Company by a senior executive officer of the Company (other than any Affiliate of Parent), certifying to the effect that the conditions set forth in Section 6.3(a6.2(a), Section 6.2(b) and Section 6.3(b6.2(c) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment (or the waiver in writing by Parent and Merger Sub Parent) at or prior to the Effective Time of the following conditions: (ai) The representations and warranties of the Company set forth in this Agreement qualified by Material Adverse Effect shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where (ii) the failure of such representations and warranties to of Company set forth in Section 3.2(a) and Section 3.2(b) shall be so true and correct at and as of the date of this Agreement, except for any de minimis inaccuracies, and (without giving effect to any “materiality” or “iii) the other representations and warranties of Company Material Adverse Effect” qualification set forth therein) does not have, in this Agreement shall be true and would not reasonably be expected to have, individually or correct in all material respects both at and as of the aggregate, a Company Material Adverse Effectdate of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i), (ii) and (iii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have in all materials respects performed all obligations and complied with all covenants contained in the Parent Loan Agreement. (d) There shall have not occurred a Material Adverse Effect with respect to the Company and its Subsidiaries, taken as a whole, since the date of this Agreement. (e) No action, suit, or proceeding shall be pending or threatened before any Governmental Entity or before any arbitrator in which an unfavorable injunction, judgment, order, decree, ruling, or charge (collectively, “Restraints”) would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of Parent to own the capital stock of the Surviving Corporation and to control the Surviving Corporation and its Subsidiaries after giving effect to the transactions contemplated by this Agreement, or (D) affect adversely the right, before or following the Closing, of any of the Surviving Corporation and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); provided, that this Section 6.3(e) shall not constitute a condition to the obligations of Parent and Merger Sub to consummate the Merger if Parent and/or any of its Subsidiaries file suit or institute proceedings with respect to, obtain, or otherwise affirmatively seek to obtain, directly or indirectly, any such Restraints. (f) Those Approvals designed as Requisite Approvals in Section 3.3(b) of the Company Disclosure Schedule and those Parent Approvals designated as Requisite Approvals in Section 4.2(b) of the Parent Disclosure Schedule have been obtained; provided, that this Section 6.3(f) shall not constitute a condition to the obligations of Parent and Merger Sub to consummate the Merger if Parent or any of its Subsidiaries fail to make any filing with or give any notice, or to use its commercially reasonable efforts to obtain any Requisite Approval. (g) The Company shall have provided to Parent evidence satisfactory to Parent that the Company’s liabilities (excluding the Parent Loan obligations, capital leases, deferred rent obligations (currently less than $36,000) and plugging and abandonment liabilities) immediately prior to the Closing do not exceed $6,500,000; provided that such $6,500,000 limit may be increased by up to an aggregate amount of $500,000 in field-related payables so long as there are corresponding field-related receivables and/or deposits. (h) The Company shall have either extended the maturity/payment dates for a period of one year beyond the Effective Time (until June 30, 2016 in the case of Xx. Xxx), or reached an accommodation with the holders of the Company’s outstanding promissory notes, in a manner acceptable to Parent. (i) Company’s CEO shall have entered into a consulting agreement, in form and substance satisfactory to Parent, and shall have resigned as an officer and director of the Company, effective as of the Effective Time. (j) The Company shall have fully paid and satisfied the judgment in favor of Nostra Terra Oil & Gas, Inc. and such judgment shall be fully discharged and all liens terminated. (k) The holders of not more than 5% of the outstanding shares of the Company Common Stock shall have taken the steps required by the Appraisal Provisions of the NRS to obtain payment for the fair value of their shares (“Dissenters’ Rights”). (l) Company shall have delivered to Parent a certificate, dated the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)Company, certifying to the effect that the conditions set forth in this Section 6.3(a) and Section 6.3(b) 6.3 have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The the representations and warranties of the Company set forth in (i) Section 3.02 shall be true and correct at in all but de minimis respects, (ii) Sections 3.04(a) and as 3.19 shall be true and correct in all respects and (iii) the remainder of the date Article III shall be true and correct in all respects (disregarding, for purposes of this Agreement Section 6.03(a) only, all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and at words of similar import set forth therein other than those contained in Sections 3.05(b) and as 3.09(b)), except, in the case of the Closing Date as though made at and as of the Closing Datethis clause (iii) only, except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect; provided, however, that in each case when made and as of the Closing Date as though made on the Closing Date (other than to the extent such representations and warranties that are made as of a specified date or period shall be so true and correct as described above only expressly relate to an earlier date, in which case as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company onlyearlier date), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The the Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and; (c) The the Company shall have delivered to Parent a certificate, dated as of the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a6.03(a) and Section 6.3(b6.03(b) have been satisfied; (d) the Company shall have delivered to Parent a statement of non-U.S. real property interest status in accordance with Treasury Regulation 1.1445-2(c)(3); (e) the SEC shall have (i) approved in the application of each investment advisory or broker-dealer affiliate of Mxxxxxx Lxxxx & Co., Inc. pursuant to Section 9(c) of the Investment Company Act regarding the exemption of the Company (and any Person that may become affiliated with the Company following the Closing) from any of the prohibitions set forth in Section 9(a) of the Investment Company Act and (ii) granted waivers of disqualifications under Regulation A, Rule 505 of Regulation D, and Regulation E promulgated under the Securities Act with respect to Mxxxxxx Lxxxx & Co., Inc. and its affiliates, in each case of subclause (i) and (ii), that apply, or that may become applicable, as a result of the Final Judgment; (f) (i) no self-regulatory organization (a “SRO”) in which each broker-dealer affiliated with Mxxxxxx Lxxxx & Co., Inc. is a member, has objected to such broker-dealer becoming affiliated or associated with the Company; (g) the Initial Order shall have been granted without any conditions materially adverse to Parent and Merger Sub and shall have received become a Final Order; provided, however, that the proceeds simultaneous consummation by Parent of any Divestiture proposed in the Financing as contemplated by the Financing CommitmentsDivestiture Applications will not be deemed to be a materially adverse condition or considered in determining whether there is a materially adverse condition; and (eh) Since since the date of this Agreement, there shall not have been any a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Section 3.02 and Section 3.11(b)) shall be true and correct at (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and at and as of the Closing Date as though made at on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of the Closing Datesuch earlier date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect; provided, however, that . The representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that the Company set forth in (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) 3.02 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date) and (ii) the representations and warranties contained in Section 3.2 (Capital Stock3.11(b) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true date of this Agreement and correct in all respects;as of the Closing Date as though made on the Closing Date. (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated as of the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a6.03(a) and Section 6.3(b6.03(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment or waiver (to the extent permitted by Applicable Law and in writing by Parent and Merger Sub accordance with the provisions hereof) at or prior to the Closing Date of the following conditions: (a) The representations and warranties of the Company contained in this Agreement (i) that are qualified as to materiality or a Company Material Adverse Effect shall be true and correct at as so qualified, and (ii) that are not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where to the failure of extent such representations and warranties expressly relate to be so true and correct an earlier date (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only which case as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etcearlier date).) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have performed, in all material respects performed all obligations respects, the covenants and complied with all covenants required by agreements contained in this Agreement required to be performed or complied with by it at on or prior to the Effective Time; andClosing Date. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than At any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since time after the date of this Agreement, there shall not have been occurred and be continuing as of the Closing Date, any change, event, occurrence, state of facts or development that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect; provided. (d) Parent shall have received a certificate of the Company, howeverexecuted on its behalf by its Chief Executive Officer or Chief Financial Officer, thatdated the Closing Date, for certifying to the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences effect that are the conditions set forth in Section 8.3(a), (b) and (c) have been satisfied. (e) The authorizations, consents or approvals identified in Section 8.3(e) of the Company Disclosure Schedule Letter shall have been obtained and evidence thereof reasonably satisfactory to Parent shall have been delivered to Parent. (to f) The officers of Parent and its Subsidiaries named in Section 7.15(a)(i) of the extent that it is reasonably apparent that such disclosure is relevantParent Disclosure Letter shall have entered into employment agreements with Parent as provided in Section 7.15(a)(i) will not be taken and the Remaining Directors shall have entered into account for purposes of determining whether a Company Material Adverse Effect has occurredamended and restated indemnification agreements with Parent as provided in Section 7.15(b).

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The Each of the representations and warranties of the Company (i) set forth in Sections 3.1(a), 3.2(a), 3.2(b) (in the case of Section 3.2(b) of the Company Disclosure Letter, solely the information regarding the number of shares and exercise prices of the Company Stock Options), 3.2(c), 3.4(a), 3.4(c)(ii), 3.19 and 3.22 of the Agreement (the "SPECIFIED SECTIONS") shall be true and correct at and in all material respects, in each case, as of the date of this Agreement and at and as of the Closing Date as though made at on and as of the Closing DateDate (provided that, to the extent any such representation or warranty speaks as of a specified date, it need only be true and correct as of such specified date), (ii) set forth in Section 3.12(c) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date and (iii) set forth in this Agreement (other than the Specified Sections and Section 3.12(c)) shall be true and correct (provided that any representation or warranty of the Company contained herein that is subject to a materiality, Material Adverse Effect or similar qualification shall not be so qualified for purposes of this paragraph) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (provided that, to the extent any such representation or warranty speaks as of a specified date, it need only be true and correct as of such specified date), except in each case of this clause (iii) only where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does do not have, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation In addition to the conditions set forth in Section 6.1 above, the obligations of Parent and Merger Sub to effect the Merger is further will be subject to the fulfillment at or waiver in writing by Parent and Merger Sub prior to the Closing Date of the following conditions: (a) The Company will have performed in all material respects its agreements and covenants contained in this Agreement required to be performed on or prior to the Closing Date. (b) Other than the representations and warranties of the Company shall be true contained in Section 3.2 (Authorization, Validity, and correct at Effect of Agreements) and as Section 3.3 (Capitalization), the representations and warranties of the date of Company contained in this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and warranties to be so true and correct in any document delivered in connection herewith (without giving effect to disregarding for this purpose any limitation or qualification by “materiality” or “Company Material Adverse Effect” qualification set forth therein”) does will be true and correct as of the Closing Date as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); provided, however, that notwithstanding anything herein to the contrary, this Section 6.3(b) will be deemed to have been satisfied even if such representations or warranties are not havetrue and correct, unless the failure to perform or the failure of any of the representations or warranties to be so true and correct would have or would be reasonably likely to have a Company Material Adverse Effect. (c) The representations and warranties of the Company contained in Section 3.2 (Authorization, Validity, and would Effect of Agreements) and Section 3.3 (Capitalization) will be true and correct in all respects (except, in the case of Section 3.3, for de minimis inaccuracies) as of the date hereof and as of the Closing Date, as if made on the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date). (d) Other than with respect to a default identified in the Company Disclosure Schedule as of the date of this Agreement, the Company will not reasonably be expected to havein default of any obligation, where said default cannot be cured by the Closing Date, under any of the Material Contracts, unless any such defaults, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; provided, however, that representations . (e) There will have been delivered to Parent (i) a certificate of the Secretary of State of Nevada and warranties that are made any other state where the Company is qualified to do business as to the good standing of the Company as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that not more than fifteen (i15) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect Business Days prior to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects Closing Date and (ii) a certificate of the representations Secretary of State of Delaware and warranties contained any other state where Corgenix, Inc. is qualified to do business as to the good standing of Corgenix, Inc., as of a date not more than fifteen (15) Business Days prior to the Closing Date. (f) There will have been no change in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence financial condition or results of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote operations of the Company Shareholders Under Applicable Law) shall from that reflected in the balance sheet of the Company so as to result, or be true and correct reasonably likely to result, in all respects;a Company Material Adverse Effect. (bg) There will have been delivered to Parent a certificate dated as of the Closing Date, duly executed by the Secretary the Company given by him or her on behalf of the Company and not in his or her individual capacity, certifying as to an attached copy of the resolutions of the shareholders of the Company authorizing and approving the execution, delivery and performance of, and the consummation of the transactions contemplated by, this Agreement, and stating that such resolutions have not been amended, modified, revoked or rescinded. (h) There will have been delivered to Parent the consents set forth on Schedule 3.5. (i) There will have been delivered to Parent an agreement, in form and substance satisfactory to the Parent, confirming the termination of that certain First Amended and Restated Joint Product Development Agreement, by and between the Company, Financiere ELITech SAS, and Wescor, Inc., dated July 28, 2011, duly executed by the parties thereto. (j) There will have been delivered to the Parent evidence satisfactory to the Parent of the termination and release of the certain liens annotated on Schedule 3.10 as subject to this Section 6.3(j). (k) No Action will be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would prevent consummation of the Merger or the transactions contemplated by this Agreement. (l) Dissenting Shares will not constitute more than ten percent (10%) of the Shares issued and outstanding as of the record date for, and entitled to vote at, the Company Shareholders Meeting. (m) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and (c) The Company shall will have delivered to Parent a certificate, dated the Effective Time and Closing Date, signed by a senior executive officer of the Company (other than any Affiliate Company, certifying as to the satisfaction of Parentthe conditions specified in Sections 6.3(a), certifying that the conditions set forth in Section 6.3(a6.3(b), 6.3(c) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e6.3(f), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (ai) The representations and warranties of the Company contained in Sections 3.1(a), 3.2, 3.21 and 3.24 shall be true and correct in all respects (except, in the case of Sections 3.1(a) and 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than those referred to in clause (i) of this Section 6.3(a)), disregarding all qualifications and exceptions contained therein relating to “Company Material Adverse Effect” or “materiality,” shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where in the case of this clause (ii) the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” would not have or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and; (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a its Chief Financial Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a) and Section 6.3(b6.3 (b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment at or waiver in writing by Parent and Merger Sub prior to the Closing Date of the following conditions: (ai) The Company shall have performed in all material respects its agreements contained in this Agreement and the Option Agreement and the Stockholders (as defined in the Support Agreement) shall have performed in all material respects their agreements contained in the Support Agreement, in each case required to be performed on or prior to the Closing Date, (ii) the representations and warranties of the Company contained in this Agreement and the Option Agreement, the Company Disclosure Schedule and documents delivered at closing, and the representations and warranties of the Stockholders contained in the Support Agreement, shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where that those representations and warranties which address matters only as of a particular date shall have been true and correct as of such date; provided, however, that for purposes of this paragraph, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not havecorrect, and would not reasonably be expected to have, either individually or in the aggregate, and without giving effect to any qualification as to materiality is reasonably likely to have a Company Material Adverse Effect; provided, howeverand (iii) Parent shall have received a certificate of the President or a Vice President of the Company, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of dated the Closing Date, certifying to such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (effect with respect to the Company onlyCompany. (b) Parent shall have received from its tax counsel, Normxx Xxxxxxx, Xxq. (or such other tax counsel to Parent as shall be reasonably acceptable to the Company), the Exhibit Opinion rendered by such legal counsel pursuant to Section 3.20 (Finders or Brokers5.15(c) and Section 3.21 reconfirmed as of the Effective Time. In reconfirming its Exhibit Opinion as of the Effective Time, such legal counsel may reasonably rely upon the Tax Certificates (State Takeover Statutes; Rights Agreementupdated as necessary). (c) Other than due to the death or disability of the employee party thereto, the employment and/or change of control agreements between each of Messrs. Granx X. Xxxxx xxx Danixx Xxxxxxx, xxd at least three (3) of Messrs. Harrx X. Xxxxxxxx, Xxhn X. Xxxxxx, Xxorxx X. Xxxxxxxxx, Xxrtxx X. Xxxxxxxxxx, Xxe X. Xxxxxx, xxd Allex X. Xxxxxxxxx, xxd The MONY Life Insurance Company dated as of August 23, 2000 shall be true unamended and correct in full force and effect, and each employee shall be performing in all material respects and his obligations thereunder (ii) or, in the representations and warranties contained in Section 3.2 (Capital Stock) case of Mr. Xxxxxxxxx, xx shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) employed by the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; NoncontraventionCompany), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied;. 44 49 (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since From the date of this AgreementAgreement through the Effective Time, there shall not have been any occurred a Company Material Adverse Effect; provided. (e) At the Effective Time, however, that, for the purposes Company and each of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are its Subsidiaries shall meet (i) the criteria set forth in Section 1467a of the Home Owners' Loan Act as in effect as of the Effective Time and (ii) any other criteria of the OTS necessary for Parent to qualify as a "Savings and Loan Holding Company" as that term is used in Section 1467a(a)(1)(D), and all consents, authorizations, orders and approvals of (or filings or registrations with) the OTS necessary for Parent to qualify as a Savings and Loan Holding Company shall have been obtained or made, and any requisite waiting periods imposed in respect thereof shall have expired and shall not have been contested by any federal or state governmental authority. (f) No more than 5% of the Company Disclosure Schedule Common Stock outstanding at the Effective Time (to the extent that it is reasonably apparent that such disclosure is relevantexcluding shares owned by Parent or any of Parent's wholly-owned subsidiaries) will not shall be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredDissenting Shares.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of each of the following conditions: (a) (i) The representations and warranties of the Company contained in Section 3.2(a), (b) and (c) (Capital Stock), Section 3.4(a) (Corporate Authority), Section 3.24 (Required Vote of the Company Shareholders), Section 3.26 (Finders or Brokers; Transaction Fees) and Section 3.27 (State Takeover Statutes) shall be true and correct in all respects (except, in the case of Section 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Company Material Adverse Effect qualifiers contained therein) as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and or warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) or (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent)its Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Sections Section 6.3(a), Section 6.3(b) and Section 6.3(b6.3(d) have been satisfied;. (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, Agreement there shall not have been any occurred a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are . (e) All Company Approvals as set forth in on Section 3.4(b) of the Company Disclosure Schedule shall have been made or obtained, as the case may be. (f) All approvals, consents, waivers and agreements of, and filings and notifications to, the third parties identified on Section 6.3(f) of the Company Disclosure Schedule shall have been made or obtained, as the case may be. (g) The Company and its Subsidiaries shall have at least $200,000,000 in aggregate commitments under the Warehouse Facilities and the advance rates thereunder shall not have been materially reduced and the eligibility criteria contained therein shall not have been amended or modified in a manner that is materially adverse to the extent that it is reasonably apparent that such disclosure is relevantCompany and its Subsidiaries. (h) will The Company and its Subsidiaries shall have unrestricted cash and undrawn availability under the Warehouse Facilities of at least $8,500,000 in the aggregate. (i) The number of Dissenting Shares for which demands for appraisal have been made and not be taken into account for purposes been withdrawn shall not exceed 12.5% of determining whether a the outstanding shares of Company Material Adverse Effect has occurredCommon Stock.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation respective obligations of Parent and Merger Sub to effect the Merger is further are subject to the fulfillment satisfaction or waiver in writing by Parent and Merger Sub (where permissible) at or prior to the Effective Time of each of the following conditions: (a) The (i) Each of the representations and warranties of the Company set forth in Section 3.9(a) (Absence of Certain Developments) shall be true and correct at and as of in all respects on the date of this Agreement and at hereof and as of the Closing Date as though made at on and as of such date, (ii) each of the representations and warranties of the Company set forth in Section 3.3(b), Section 3.3(c), and Section 3.3(d) (Capital Stock) shall be true and correct in all respects, except for any inaccuracies or combination of inaccuracies in such representations and warranties relative to the total fully-diluted equity capitalization of the Company on the date hereof and as of the Closing DateDate that do not result in an increase in the aggregate consideration otherwise payable by Parent in the Merger by more than $7,500,000, as of the Closing Date as though made on and as of such date (except for those representations and warranties which address matters as of an earlier date, which shall have been so true and correct as of such earlier date), (iii) each of the representations and warranties of the Company set forth in Section 3.1 (Organization and Corporate Power), Section 3.2 (Authorization; Xxxxx and Binding Agreement), Section 3.24 (Brokerage) and Section 3.27 (Opinion) shall be true and correct in all material respects, on the date hereof and as of the Closing Date as though made on and as of such date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty is true and correct in all material respects as of such earlier date) and (iv) each of the other representations and warranties of the Company contained in Article III shall be true and correct except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” qualification set forth therein”) does has not have, and would not reasonably be expected to havehad, individually or in the aggregate, a Company Material Adverse Effect; provided, howeveron the date hereof and as of the Closing Date, that as if made as of such date (except for those representations and warranties that are made which address matters as of a specified date or period an earlier date, which shall be have been so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company onlyearlier date), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have performed or complied in all material respects performed all obligations and complied with all covenants required by this Agreement (or if any time prior to be the Closing has not performed or complied with by it covenants or obligations that are capable of being cured, such non-performance and non-compliance has been cured) with all covenants and obligations that the Company is required to comply with or to perform under this Agreement at or prior to the Effective TimeClosing Date (c) Since the date of this Agreement, no Company Material Adverse Effect shall have occurred; and (cd) The Company shall have delivered to Parent a certificatecertificate signed by an authorized officer of the Company, dated the Effective Time and signed Closing Date, certifying as to the satisfaction by a senior executive officer the Company of the Company conditions described in clauses (other than any Affiliate of Parenta), certifying that the conditions set forth in Section 6.3(a(b) and Section 6.3(b(c) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred6.2.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment by the Company or waiver in writing by Parent and Merger Sub at or prior to the Closing Date of the following conditions: (a) The Company shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement and in any document delivered in connection herewith (i) to the extent qualified by Company Material Adverse Effect or any other materiality qualification shall be true and correct at and as of (ii) to the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “extent not qualified by Company Material Adverse Effect” Effect or any other materiality qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects respects, in each case as of the date hereof and as of the Closing Date (ii) the except for representations and warranties contained in Section 3.2 (Capital Stock) shall made as of a specified date, which need be true and correct in all respects, except for such inaccuracies only as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) of the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontraventionspecified date), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote Parent shall have received a certificate of the Company Shareholders Under Applicable Law) shall be true and correct in all respects;Company, executed on its behalf by its President or a Vice President of the Company, dated the Closing Date, certifying to such effect. (b) The consolidated current assets of the Company, less the consolidated current liabilities of the Company, as of the Closing Date, shall be not less than $5,000,000, and Parent shall have received a certificate of the Company, executed on its behalf by its President or a Vice President of the Company, dated the Closing Date, certifying to such effect; provided, however, that for purposes of determining the Company’s consolidated current assets, the Company shall have receive (i) a credit equal to (A) any fees and expenses actually paid by the Company in all material respects performed all obligations and complied connection with all covenants required by this Agreement to be performed or complied with and the transactions contemplated hereby for the Company’s Financial Advisor and the Company’s counsel and accountants and (B) the amount by it at or prior which capital expenditures actually paid by the Company for the construction of outdoor advertising faces and their supporting structures from and after the date of the Agreement exceeds Two Hundred Eighty Thousand and 00/100 Dollars, and (ii) a debit equal to the Effective Timeamount of cash received by the Company as a result of (A) the exercise of any Company Options pursuant to Section 5.14 and (B) the purchase of Company Common Shares after the date hereof pursuant to the Employee Share Purchase Plan; andprovided, further, that for purposes of determining the Company’s consolidated current liabilities, the fees and expenses incurred by the Company in connection with this Agreement and the transactions contemplated hereby for the Company’s Financial Advisor and the Company’s counsel and accountants shall not be considered. (c) The Company aggregate amount of the Company’s long-term debt (including capital lease obligations, but excluding the current portion thereof), as of the Closing Date, shall not be greater than $18,300,000, and Parent shall have delivered to Parent received a certificatecertificate of the Company, executed on its behalf by its President or a Vice President of the Company, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent)Closing Date, certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied;to such effect. (d) The Consulting Agreement in the form attached hereto as Exhibit C (the “Consulting Agreement”) executed by Executive and the Company as of the date of this Agreement shall be in full force and effect, without amendment, and neither party thereto shall be aware of any facts or circumstances that could reasonably be expected to cause such agreement to no longer be in full force or effect. (e) The Amended and Restated Lease Agreement in the form attached hereto as Exhibit D executed by Oxxx Industries, Incorporated and the Company as of the date of this Agreement shall be in full force and effect, without amendment, and neither party thereto shall be aware of any facts or circumstances that could reasonably be expected to cause such agreement to no longer be in full force or effect. (f) The percentage of Dissenting Shares to the total number of Company Common Shares issued and outstanding immediately prior to the Closing Date (including the aggregate number of Dissenting Shares, but excluding the Excluded Company Shares) shall not be greater than 5%. (g) Parent and Merger Sub shall have received the proceeds opinion of its counsel, in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth therein, dated the Closing Date, a copy of which shall be furnished to the Company, to the effect that (i) the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Financing Code and (ii) Parent, Merger Sub and the Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code. In rendering such opinion, such counsel shall be entitled to receive and rely upon representations of officers of Parent, Merger Sub and the Company as contemplated by the Financing Commitments; andto such matters as such counsel may reasonably request. (eh) Since The Company shall have obtained all of the date of this Agreement, there Required Consents. (i) There shall not have been be instituted or pending any Company Material Adverse Effect; providedaction or proceeding by any Governmental Entity (i) seeking to restrain, however, that, for prohibit or otherwise interfere with the purposes ownership or operation by Parent or any of this Section 6.3(e), facts, circumstances, events, changes, effects its Subsidiaries of all or occurrences that are set forth in any portion of the business of the Company Disclosure Schedule or any of its Subsidiaries or of Parent or any of its Subsidiaries or to compel Parent or any of its Subsidiaries to dispose of or hold separate all or any portion of the business or assets of the Company or any of its Subsidiaries or of Parent or any of its Subsidiaries, (ii) seeking to impose or confirm limitations on the extent that it is reasonably apparent that ability of Parent or any of its Subsidiaries effectively to exercise full rights of ownership of the Company Common Shares (or shares of stock of the Surviving Corporation) including the right to vote any such disclosure is relevantshares on any matters properly presented to stockholders or (iii) will not seeking to require divestiture by Parent or any of its Subsidiaries of any such shares. (j) The Company shall have diligently pursued or completed the construction of Unbuilt Faces, and each completed Unbuilt Face, as constructed, shall be taken into account (a) legal and conforming, (b) available for purposes sale and (c) standing and in good condition acceptable within the standards of determining whether a the outdoor advertising industry. (k) Parent shall have received copies of the resignations, effective as of the Effective Time, of each director of the Company Material Adverse Effect has occurredand its Subsidiaries.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) (i) The representations and warranties of the Company contained in Section 3.1(a), Section 3.2, Section 3.3, Section 3.4(a), Section 3.12, Section 3.19, Section 3.21 and Section 3.25 shall be true and correct in all respects (except, in the case of Section 3.1(a) and Section 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than those referred to in clause (i) of this Section 6.3(a)), disregarding all qualifications and exceptions contained therein relating to “Company Material Adverse Effect” or “materiality”, shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where in the case of this clause (ii) the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” would not have or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and; (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a its Chief Financial Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, Agreement there shall not have been occurred and be continuing, and there shall not otherwise be continuing, any Company Material Adverse Effect; provided; (e) Holders of no more than ten percent (10%) of the outstanding Company Common Stock and holders of no more than ten percent (10%) of the outstanding Company Preferred Stock shall be Dissenting Stockholders; (f) No event of default under the Company’s Revolving Credit Agreement dated July 5, however2006, thatas amended, for with Comerica Bank and the purposes other lenders party thereto (the “Company Credit Agreement”) or any of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth the related Loan Documents (as such term is defined in the Company Disclosure Schedule (Credit Agreement) shall have occurred and be continuing and have caused the Debt Financing to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes available in full on the Closing Date consistent with the terms of determining whether a the Financing Commitment; and (g) The Company Material Adverse Effect has occurredshall have obtained the draft or preliminary permit described in Section 3.8(b) of the Company Exception Letter with no material conditions thereto outside the ordinary course of the Company’s business.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The Except as set forth in the next sentence, (i) the representations and warranties of the Company set forth in this Agreement that are qualified by Company Material Adverse Effect shall be true and correct at in all respects, and as (ii) the representations and warranties of the date of Company set forth in this Agreement that are not qualified by Company Material Adverse Effect shall be true and at correct (without giving effect to any "materiality" qualifiers set forth therein), except for such failures to be true and correct as would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, in each case, as of the Closing Date as though made at and as of the Closing DateDate (or, except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that case of those representations and warranties that are made as of a specified particular date or period shall be so true and correct as described above only period, as of such specified date or period; and provided further, however, that (i) the ). The representations and warranties contained of the Company set forth in Section 3.1(a) the first sentences of each of Sections 3.1 (Qualification, OrganizationOrganization and Good Standing), Subsidiaries, etc.3.2(a) (with respect to the Company only), Section 3.20 Capital Stock) and 3.17 (Finders or Brokers) and Section 3.21 in Sections 3.2(b) (State Takeover Statutes; Rights AgreementCapital Stock) and 3.3(a)(Authorization) shall be true and correct in all material respects (except, in the case of Section 3.2, for insubstantial numerical inaccuracies) as of the Closing Date as though made at and as of the Closing Date (ii) the other than those of such representations and warranties contained that expressly relate to an earlier date, in Section 3.2 (Capital Stock) which case such particular representations shall be have been true and correct in all respects, except for respects as of such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontraventionearlier date), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and; (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer its Chief Executive Officer on behalf of the Company (other than any Affiliate of Parent)Company, certifying to the effect that the conditions set forth in Section Sections 6.3(a) and Section 6.3(b) have been satisfied; (d) Substantially concurrently with the Closing, Parent and or Merger Sub shall have received the proceeds of the Debt Financing contemplated by the Financing Commitments related to the Debt Financing on the terms and conditions set forth therein (and, with respect to terms and conditions not so set forth, on terms and conditions reasonably acceptable to Parent) or proceeds in the same aggregate amount as contemplated by the Debt Financing Commitmentsfrom other financing sources as provided in Section 5.12(a); and (ei) Since Each of the date of this Agreement, there 2008 Debt Offer and the 2031 Debt Offer shall not have been any consummated and substantially concurrently with the Closing, the Company Material Adverse Effect; provided, however, that, shall have paid the depositary under the Debt Offers the purchase price for the purposes Debt Securities tendered thereunder (including all principal amounts, accrued interest, premiums, breakage costs, solicitation agent fees and other expenses in connection with the Debt Offers) and (ii) consents shall have been obtained from the holders of this Section 6.3(e)a majority of the outstanding principal amount of each of (x) the 2008 Notes and (y) the 2031 Senior Bonds, factsin each case, circumstances, events, changes, effects or occurrences that are agreeing to the execution and delivery of a supplemental indenture amending the terms and provisions of the Indenture as set forth on Section 5.15 of the Parent Disclosure Schedule, including to permit the consummation of the Merger and the other transactions contemplated hereby, all in accordance with the Company Disclosure Schedule (to provisions of Section 5.15, and each such supplemental indenture shall, substantially concurrently with the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredClosing, have been executed by the parties thereto.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation In addition to the conditions set forth in Section 8.1 above, the obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment at or waiver in writing by Parent and Merger Sub prior to the Closing Date of the following conditions: (a) The Company shall have performed in all respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date, the representations and warranties of the Company contained in this Agreement and in any document delivered in connection herewith shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though if made at and as of on the Closing Date, except where and Parent shall have received a certificate of the President or a Vice President of the Company, dated the Closing Date, certifying to such effect; provided, however, that notwithstanding anything herein to the contrary, this Section 8.3(a) shall be deemed to have been satisfied even if such performance has not occurred or such representations or warranties are not true and correct, unless the failure to perform or the failure of such any of the representations and or warranties to be so true and correct (without giving effect would have or would be reasonably likely to any “materiality” or “have a Company Material Adverse Effect” qualification set forth therein. (b) does The status of any litigation of the Company as described in Schedule 5.14 of the Company Disclosure Schedule and/or the terms of any agreements relating to the compromise or dismissal of any action, suit or proceeding described in Schedule 5.14 of the Company Disclosure Schedule (subject to any restrictions on the disclosure of such terms) shall be satisfactory to Parent. (c) Other than with respect to a default identified in the Company Disclosure Schedule as of the date of this Agreement, the Company shall not havebe in default of any obligation, and would where said default cannot reasonably be expected to havecured by the Closing Date, under any of the Material Contracts, unless any such defaults, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; provided, howeverand Parent shall have received a certificate of the President or a Vice President of the Company, that representations dated the Closing Date, certifying to such effect. (d) All consents and warranties that are made approvals of any third parties required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained and delivered to Parent unless otherwise waived by Parent. (e) The number of Dissenting Shares shall not consist of more than five percent (5%) of the issued and outstanding Company Common Stock. (f) The holders of Company Options shall have executed and delivered the Optionholders Agreement set forth as Exhibit F hereto. (g) Each of Briax X. Xxxxx xxx Perrx Xxxxx xxxll have executed and delivered to the Company the employment agreements set forth as Exhibit A-1 and A-2, respectively. (h) The holders of at least ninety-five percent (95%) of the issued and outstanding Company Common Stock shall have executed and delivered to the Company the written consent contemplated by Section 7.1 of this Agreement and executed and delivered to Parent the Stockholders Agreement. (i) There shall have been delivered to Parent a specified date or period shall be so certificate, dated within fifteen days of the Closing Date, of the Secretary of State of the State of Georgia, listing all charter documents of the Company on file in the office of said Secretary of State and copies of the Articles of Incorporation of the Company and all amendments thereto, certified as true and correct as described above only as by said Secretary of such specified date or period; and provided furtherState within fifteen days of the Closing Date. (j) There shall have been delivered to Parent a certificate, howeverdated within fifteen days of the Closing Date, that (i) of the representations and warranties contained in Section 3.1(a) (QualificationSecretary of State of the State of Georgia, Organization, Subsidiaries, etc.) (with respect to the incorporation, subsistence, and good legal standing of the Company. (k) There shall have been delivered to Parent a certificate, dated the Closing Date, of the Secretary of the Company only)(i) to the effect that the Company's Articles of Incorporation have not been amended since the date of the Certificate referred to in Section 8.3(i) above, Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be attaching a true and correct complete copy of the Company's Bylaws as in all respectseffect on the Closing Date, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) attaching a true and complete copy of the representations resolutions of the Company's Board of Directors approving the execution and warranties contained in Section 3.3(adelivery of this Agreement and authorizing the consummation of the transactions contemplated hereby. (l) (Corporate Authority Relative There shall have been delivered to this Agreement; Noncontravention)Parent a certificate, dated the second sentence Closing Date, with respect to the incumbency and signatures of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote all officers of the Company Shareholders Under Applicable Law) shall be true signing this Agreement and correct any other certificate, agreement or instrument delivered on behalf of the Company in all respects;connection with this Agreement. (bm) The Company There shall have been no change in all material respects performed all obligations and complied with all covenants required by this Agreement the financial condition or results of operations of the Company from that reflected in the Company Balance Sheet so as to be performed or complied with by it at or prior to the Effective Time; andresult in a Company Material Adverse Effect. (cn) The Company shall have delivered to Parent a certificate, dated an opinion of its counsel in the Effective Time and signed by a senior executive officer form attached hereto as Exhibit D. (o) Representatives of the Company (other than any Affiliate shall have performed a successful live build demonstration of Parent)the Software. Immediately following the build demonstration of the Software, certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied;Company shall deliver to the Company's counsel a source code version of each of the Software deliverables hereunder.. (dp) Parent and Merger Sub shall have received the proceeds a subscription agreement, in form and substance satisfactory to Parent, from each of the Financing Brokers, in which the Brokers shall agree to accept the delivery of 75,000 shares of Parent Common Stock as contemplated payment in full of any fees owed to them by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredCompany.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further shall be subject to the fulfillment at or waiver in writing by Parent and Merger Sub prior to the Closing Date of the following conditions: (a) The Company shall have performed in all respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date, the representations and warranties of the Company contained in this Agreement and in any document delivered in connection herewith shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though if made at and as of on the Closing Date, except where and Parent shall have received a certificate of the President or a Vice President of the Company, dated the Closing Date, certifying to such effect; provided, however, that notwithstanding anything herein to the contrary, this Section 8.3(a) shall be deemed to have been satisfied even if such performance has not occurred or such representations or warranties are not true and correct, unless the failure to perform or the failure of such any of the representations and or warranties to be so true and correct (without giving effect would have or would be reasonably likely to any “materiality” or “Company have a Parent Material Adverse Effect” qualification set forth therein. (b) does The status of any litigation of the Company as described in Schedule 5.14 of the Company Disclosure Schedule and/or the terms of any agreements relating to the compromise or dismissal of any action, suit or proceeding described in Schedule 5.14 of the Company Disclosure Schedule (subject to any restrictions on the disclosure of such terms) shall be satisfactory to Parent. (c) Other than with respect to a default identified in the Company Disclosure Schedule as of the date of this Agreement, the Company shall not havebe in default of any obligation, and would where said default cannot reasonably be expected to havecured by the Closing Date, under any of the Material Contracts, unless any such defaults, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall would not reasonably be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect expected to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.a

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment (or waiver in writing by Parent and Merger Sub Sub) of the following conditions: (a) (i) The representations and warranties of the Company contained in Section 3.2 (Capital Stock), Section 3.3(a) (Corporate Authority), Section 3.3 (No Violation), Section 3.16 (Opinion of Financial Advisor), Section 3.17 (Required Vote of the Company Stockholders), Section 3.19 (Finders and Brokers) and Section 3.20 (State Takeover Statutes; Charter Provisions) shall be true and correct in all respects (except, in the case of Section 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, that if the Recommendation is made by a majority but less than a unanimous approval of the Board of Directors (or the Special Committee) that fact shall not constitute a failure of the condition that the representations and warranties of the Company contained in Section 3.3(a) be true and correct in all respects, and (ii) the representations and warranties of the Company set forth in this Agreement (other than in clause (i) above) shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied;. (d) Since the date of this Agreement there shall not have been any Company Material Adverse Effect. (e) The Company, Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredFinancing.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The representations and warranties of the Company set forth in this Agreement shall be true and correct at and as of the date of this Agreement and at (except to the extent such representations and warranties speak as of an earlier date, in which case they shall be true and correct as of such earlier date) as of the Closing Date as though made at on and as of the Closing Date, provided, however, that for purposes of determining the satisfaction of this condition, no effect shall be given to any exception in such representations and warranties relating to materiality or a material adverse effect, and instead, for purposes of this condition, such representations and warranties (other than the representations and warranties contained in Section 3.2(a), which shall be true and correct except where to a de minimis extent relative to Section 3.2(a) taken as a whole) shall be deemed to be true and correct in all respects unless the failure or failures of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to havecorrect, individually or in the aggregate, would have a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent)its Chief Executive Officer, certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied;. (d) Parent and Merger Sub No Requisite Regulatory Approval shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been include any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredMaterially Burdensome Regulatory Condition.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (a) The representations and warranties of the Company with respect to itself and its Subsidiaries set forth herein shall be true and correct at and as of the date of this Agreement both when made and at and as of the Closing Date Date, as though if made at and as of such time (except to the Closing Dateextent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effectmaterial adverse effect” qualification qualifiers set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; andDate. (c) During the period from the date of this Agreement to the Closing Date, there shall not have occurred any Company Material Adverse Effect that continues to exist on the Closing Date and as of the Effective Date. (d) The equity capitalization of the Company and its Subsidiaries (including all subscriptions, options, warrants, calls, convertible securities or other similar rights, agreements or commitments relating to the issuance of capital stock by the Company or any Subsidiary) shall, as of the Closing Date and not as of the earlier dates set forth in Section 3.2, be as set forth in Section 3.2 and in Section 3.2 of the Company Disclosure Schedule. (e) The Company and its Subsidiaries shall have performed and complied in all respects with the covenant set forth in Section 5.1(c). (f) The Company shall have delivered to Parent a certificate, dated the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a), 6.3(b), 6.3(c), 6.3(d) and Section 6.3(b6.3(e) have been satisfied;. (dg) Parent and Merger Sub shall have received been furnished with the proceeds opinion of Xxxx, Plant & Xxxxx, counsel to the Company, as dated of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this AgreementClosing Date, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes form of determining whether a Company Material Adverse Effect has occurredExhibit D attached hereto.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation respective obligations of Parent and Merger Sub to effect the Merger is further are subject to the fulfillment satisfaction or waiver in writing by Parent and Merger Sub (where permissible) at or prior to the Effective Time of each of the following conditions: (a) The representations and warranties of the Company shall be set forth in (i) Section 3.1 and Section 3.2 are true and correct at and in all respects as of the date of this Agreement and as of the Effective Time as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), (ii) Section 3.3(a), Section 3.3(c) and the first sentence of Section 3.22 are true and correct in all but de minimis respects as of the date of this Agreement and as of the Effective Time as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), (iii) Section 3.9, Section 3.22 (other than the first sentence of Section 3.22) and Section 3.23 are true and correct in all material respects as of the date of this Agreement and as of the Effective Time as if made as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), and (iv) any other representations and warranties of the Company set forth in Article III are true and correct either when made or at and as of the Closing Date Effective Time, as though if made at and as of such time (except to the Closing Dateextent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect regard to any “materiality” qualifications or “exceptions contained as to materiality or Company Material Adverse Effect” qualification set forth thereinEffect contained in such representations and warranties) does not have, and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have performed or complied in all material respects performed all obligations and complied with all covenants and obligations that the Company is required by to comply with or to perform under this Agreement to be performed or complied with by it at or prior to the Effective Time; andClosing Date; (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredthat is continuing as of the Closing Date; and (d) The Company shall have delivered to Parent a certificate signed by an authorized officer of the Company, dated the Closing Date, certifying as to the satisfaction by the Company of the conditions described in clauses (a), (b) and (c) of this Section 6.2.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment (or waiver in writing by Parent, to the extent permissible under applicable Law) as of the Effective Time of each of the following conditions (provided that in the event that the conditions in Section 6.3(d) are not satisfied, such will not eliminate the obligation of Parent and Merger Sub to effectuate the Merger and instead their sole recourse shall be to cause the Paying Agent to withhold from payments hereunder as may be required by Section 1445 of the following conditions:Code and the Treasury Regulations thereunder): (a) The representations (i) the representation and warranties warranty of the Company set forth in Section 3.10(b) shall be have been true and correct at and in all respects as of the date of this Agreement and at be true and correct in all respects as of the Closing Date as if made on the Closing Date, (ii) the representations and warranties of the Company set forth in Section 3.2(a) shall have been true and correct in all respects as of the date of this Agreement and be true and correct in all respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a specific date, in which case such representation and warranty shall be true and correct in all respects only as of such specified date), except in each case for inaccuracies that are de minimis in the aggregate, (iii) the representations and warranties of the Company set forth in Section 3.1, Section 3.3(a), Section 3.18, Section 3.19, Section 3.20 and Section 3.21 shall be true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a specific date, in which case such representation and warranty shall be true and correct in all material respects only as of such specified date), and (iv) the other representations and warranties of the Company set forth in Article III of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as though if made at on the Closing Date (except to the extent that any such representation and warranty expressly speaks as of the Closing Datea specific date, in which case such representation and warranty shall be true and correct only as of such specified date), except where the failure of such representations and warranties to be so true and correct (without giving effect disregarding all qualifications or limitations as to any “materiality,” or “Company Material Adverse Effect” qualification set forth thereinor words of similar import) does not have, and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have performed and complied in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company Parent shall have delivered to Parent received a certificate, dated certificate of the Effective Time and signed by a chief executive officer or other senior executive officer of the Company (other than any Affiliate of Parent)Company, certifying for and on behalf of the Company that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied;. (d) Parent and Merger Sub shall have received a certification from the proceeds Company, in form and substance reasonably satisfactory to Parent, to the effect that interests in the Company are not U.S. real property interests for purposes of Treasury Regulations Section 1.1445-2(c), together with a notice to the Internal Revenue Service under Treasury Regulations Section 1.897-2 which Parent is authorized to submit on behalf of the Financing Company. (e) The conversion of all the Company Convertible Notes, and cancellation of all Company Warrants, in each case as contemplated by the Financing Commitments; andConversion and Cancellation Agreement shall have occurred and been consummated in full, such that there shall be no Company Convertible Notes or Company Warrants issued or outstanding as of immediately prior to the Effective Time. (ef) Since No Material Adverse Effect shall have occurred since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect consummate the Merger is further subject to the fulfillment satisfaction (or waiver in writing by Parent and Merger Sub in its sole discretion) of the following further conditions: (a) The Each of the representations and warranties of the Company contained in this Agreement that is unqualified as to materiality shall be have been true and correct at and in all material respects as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that representations and warranties that are made as of a specified date or period shall be so true and correct as described above only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects as of the Closing as though made at and as of such time (ii) other than representations and warranties that speak as of another specific date or time which need only be true and correct as of such date or time), and each of the representations and warranties of the Company contained in Section 3.2 (Capital Stock) this Agreement that is qualified as to materiality shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects, except for respects as of the Closing as though made at and as of such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and time (iii) the other than representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence that speak as of Section 3.9 (Absence of Certain Changes another specific date or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall time which need only be true and correct in all respects;as of such date or time). (b) The Company shall have performed or complied in all material respects performed with all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; andClosing Date. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent), certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been occurred any change or event that has had or would reasonably be expected to have a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are . (d) All Consents set forth in on Section 9.2(d) of the Company Disclosure Schedule shall have been received, obtained or made by the Company and delivered to Parent and each such consent shall be in form and substance reasonably satisfactory to Parent. (e) Dissenting Shares shall not equal more than five percent (5%) of the shares of Company Common Stock outstanding immediately prior to the Effective Time. (f) Each of the Retention Agreements and Restrictive Covenant Agreements shall be in full force effect. (g) The General Releases described in Section 6.10 shall have been executed by all parties thereto and delivered to the Company, and each such release shall be in full force and effect. (h) Each of the Rollover Commitment Letters shall be in full force and effect; no Rollover Person shall have terminated or rescinded the Rollover Commitment Letter in any manner; each Rollover Person shall have exchanged the Rollover Shares pursuant to the terms of the Rollover Commitment Letter. (i) Parent shall have completed the Financing (the “Financing Condition”). (j) Parent shall have received the duly executed legal opinion of the Company’s counsel in the form attached hereto as Exhibit H. (k) The Spinoff shall have been completed in form and substance reasonably acceptable to Parent, and each of the SpinOff Agreements shall be in full force and effect and shall not have been amended or modified in any respect. (l) At the Closing, the Company shall deliver to Parent the following documents, in each case duly executed or otherwise in proper form: (i) A certificate signed by the President of the Company dated the Closing Date certifying to the effects set forth in Sections 9.2(a), (b) and (c). (ii) A certificate signed by the Secretary of the Company dated the Closing Date certifying (A) the Company’s Charter Documents and that such documents have not been amended and remain in full force and effect; (B) the resolutions duly adopted by the Board of Directors of the Company approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that such resolutions have not been amended and remain in full force and effect; and (C) the resolutions duly adopted by the Company Stockholders approving this Agreement and the consummation of the transactions contemplated hereby, and that such resolutions have not been amended and remain in full force and effect. (iii) The Principal Stockholder Consents duly executed by each of the Principal Stockholders. (iv) The Escrow Agreement, duly executed by the Stockholder Representative and the Escrow Agent. (v) Resignations of each of the directors and, to the extent requested by Parent not later than five (5) Business Days prior to the Closing, officers of the Company and its Subsidiaries, effective as of the Closing, in form and substance reasonably satisfactory to Parent, duly executed by such persons. (vi) Payoff letters from each holder of Funded Indebtedness as required by Section 3.3, including releases of Liens and/or financing statements to reflect the termination of any Liens (other than Permitted Liens), against any of the Company’s and its Subsidiaries’ assets or payoff letters from each secured party possessing any Lien on any assets of the Company or its Subsidiaries evidencing the authority to release such Liens upon receipt of the payoff amount, in a form reasonably agreed to by Parent. (vii) The Transaction Expense Certificate. (viii) The corporate minute books and stock transfer books of the Company and its Subsidiaries. (ix) The FIRPTA Statement, together with the FIRPTA Notice. (x) A certificate of current status or good standing, as applicable, dated not more than ten (10) calendar days prior to the Closing Date, attesting to the good standing or active status of the Company as a corporation under the laws of the State of Delaware and in each state where the Company is qualified to do business. (xi) The Allocation Certificate. (xii) Evidence, reasonably satisfactory to Parent, that it the Company Stockholders (A) have approved by the requisite vote any Section 280G Payments in a manner that is reasonably apparent effective under Section 280G(b)(5) of the Code and Treasury Regulations §1.280G-1 thereunder or (B) have voted upon such Section 280G Payments and the requisite stockholder vote was not obtained with respect to the Section 280G Payments and that the “disqualified individuals” (as such disclosure term is relevantdefined in the Treasury Regulations promulgated under Section 280G of the Code) will not be taken into account for purposes shall forfeit any and all Section 280G Payments. (xiii) The SpinCo Appraisal. (xiv) All Company Stock Option exercise notices and Option Surrender Agreements timely submitted in accordance with Section 2.7. (xv) Each officer of determining whether a the Company Material Adverse Effect who has occurredany loans outstanding from the Company or its Subsidiaries shall have paid any all amounts (including interest) under such loans to the Company.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment (or the waiver in writing by Parent and Merger Sub Parent) at or prior to the Effective Time of the following conditions: (ai) The representations and warranties of the Company set forth in this Agreement qualified by Material Adverse Effect shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where (ii) the failure of such representations and warranties to of Company set forth in Section 3.2(a) and Section 3.2(b) shall be so true and correct at and as of the date of this Agreement, except for any de minimis inaccuracies, and (without giving effect to any “materiality” or “iii) the other representations and warranties of Company Material Adverse Effect” qualification set forth therein) does not have, in this Agreement shall be true and would not reasonably be expected to have, individually or correct in all material respects both at and as of the aggregate, a Company Material Adverse Effectdate of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i), (ii) and (iii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have in all materials respects performed all obligations and complied with all covenants contained in the Parent Loan Agreement. (d) There shall have not occurred a Material Adverse Effect with respect to the Company and its Subsidiaries, taken as a whole, since the date of this Agreement. (e) No action, suit, or proceeding shall be pending or threatened before any Governmental Entity or before any arbitrator in which an unfavorable injunction, judgment, order, decree, ruling, or charge (collectively, “Restraints”) would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of Parent to own the capital stock of the Surviving Corporation and to control the Surviving Corporation and its Subsidiaries after giving effect to the transactions contemplated by this Agreement, or (D) affect adversely the right, before or following the Closing, of any of the Surviving Corporation and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); provided, that this Section 6.3(e) shall not constitute a condition to the obligations of Parent and Merger Sub to consummate the Merger if Parent and/or any of its Subsidiaries file suit or institute proceedings with respect to, obtain, or otherwise affirmatively seek to obtain, directly or indirectly, any such Restraints. (f) Those Approvals designed as Requisite Approvals in Section 3.3(b) of the Company Disclosure Schedule and those Parent Approvals designated as Requisite Approvals in Section 4.2(b) of the Parent Disclosure Schedule have been obtained; provided, that this Section 6.3(f) shall not constitute a condition to the obligations of Parent and Merger Sub to consummate the Merger if Parent or any of its Subsidiaries fail to make any filing with or give any notice, or to use its commercially reasonable efforts to obtain any Requisite Approval. (g) The Company shall have provided to Parent evidence satisfactory to Parent that the Company’s liabilities (excluding the Parent Loan obligations, capital leases, deferred rent obligations (currently less than $36,000) and plugging and abandonment liabilities) immediately prior to the Closing do not exceed $6,500,000; provided that such $6,500,000 limit may be increased by up to an aggregate amount of $500,000 in field-related payables so long as there are corresponding field-related receivables and/or deposits. (h) The Company shall have either extended the maturity/payment dates for a period of one year beyond the Effective Time (until June 30, 2016 in the case of Mr. Xxx), or reached an accommodation with the holders of the Company’s outstanding promissory notes, in a manner acceptable to Parent. (i) Company’s CEO shall have entered into a consulting agreement, in form and substance satisfactory to Parent, and shall have resigned as an officer and director of the Company, effective as of the Effective Time. (j) The Company shall have fully paid and satisfied the judgment in favor of Nostra Terra Oil & Gas, Inc. and such judgment shall be fully discharged and all liens terminated. (k) The holders of not more than 5% of the outstanding shares of the Company Common Stock shall have taken the steps required by the Appraisal Provisions of the NRS to obtain payment for the fair value of their shares (“Dissenters’ Rights”). (l) Company shall have delivered to Parent a certificate, dated the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)Company, certifying to the effect that the conditions set forth in this Section 6.3(a) and Section 6.3(b) 6.3 have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of the following conditions: (ai) The representations and warranties of the Company contained in Section 3.1 (Qualification, Organization, Subsidiaries, etc.), Section 3.2 (Capital Stock), Section 3.3 (Subsidiaries), Section 3.4(a) (Corporate Authority), Section 3.12(a)(ii) (Absence of Certain Changes or Events), Section 3.21 (Required Vote of the Company Shareholders), and Section 3.24 (State Takeover Statutes; Rights Plan) shall be true and correct in all respects (except, in the case of Sections 3.1(a), 3.2 and 3.3 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Company Material Adverse Effect qualifiers contained therein) as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and or warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) or (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), 6.3(b) and Section 6.3(b6.3 (d) have been satisfied; (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule (to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurred.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment (or the waiver in writing by Parent and Merger Sub Parent) at or prior to the Effective Time of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than those representations and warranties set forth in clauses 6.3(a)(ii) through (iv) below) shall be true and correct both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and warranties failures to be so true and correct (without giving effect regard to any “materiality,” or “Company Material Adverse Effect” qualification set forth thereinEffect on the Company and similar qualifiers contained in such representations and warranties) does has not havehad, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, (ii) Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.), Section 3.2(f) (Agreements with Respect to Company Equity), Section 3.3(a) and Section 3.3(b) (Authorization), Section 3.20 (Opinion of Financial Advisor), Section 3.23 (Finders or Brokers) and Section 3.24 (State Takeover Statute) (A) that are qualified by “materiality” or Material Adverse Effect on the Company shall be true and correct in all respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (B) that are not qualified by “materiality” or Material Adverse Effect on the Company shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, (iii) Section 3.2(a) (Capitalization) shall be true and correct in all respects both at and as of the date of this Agreement and at and as of the Closing, except for any de minimis inaccuracies and (iv) Section 3.10(b) (No Material Adverse Effect) shall be true and correct in all respects both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in the above clauses (i) through (iv), as described above applicable) only as of such specified date or period; and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects; (b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and; (c) The Company shall have delivered to Parent a certificate, dated the Effective Time Closing Date and signed by a its Chief Executive Officer or another senior executive officer of the Company (other than any Affiliate of Parent)officer, certifying to the effect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied; (d) Parent and Merger Sub The Company shall have received made all required filings and obtained from the proceeds DOE all approvals and consents set forth on Section 6.3(d) of the Financing as contemplated Company Disclosure Schedule required for the consummation of the Merger and the other Transactions; (e) There shall have been no orders, judgments, or decrees that rescind, revoke, stay, withdraw, terminate, cancel, repeal, vacate or invalidate any of (i) the FERC NGA Section 3 Authorization for the LNG Plant or the Section 7 Certificate for the Line 200/Line 300 pipeline system, including the FERC Order extending the deadline to place the LNG Plant in service by April 18, 2029, or (ii) the Financing CommitmentsDXX XXX Section 3 Export Authorizations to countries with a free trade agreement (“FTA”) and countries without a free trade agreement (“non-FTA”); and (ef) Since The Company shall have delivered the date of this Agreement, there shall not have been any Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are set forth in the Company Disclosure Schedule executed Estoppel Certificates to Parent dated no earlier than sixty (60) days prior to the extent that it is reasonably apparent that such disclosure is relevant) will not be taken into account for purposes of determining whether a Company Material Adverse Effect has occurredClosing Date.

Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver in writing by Parent and Merger Sub of each of the following conditions: (ai) The representations and warranties of the Company contained in Section 3.2(a), (b) and (c) (Capital Stock), Section 3.4(a) (Corporate Authority), Section 3.24 (Required Vote of the Company Shareholders), Section 3.26 (Finders or Brokers; Transaction Fees) and Section 3.27 (State Takeover Statutes) shall be true and correct in all respects (except, in the case of Section 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Company Material Adverse Effect qualifiers contained therein) as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations and or warranties to be so true and correct (without giving effect to any “materiality” or “Company Material Adverse Effect” qualification set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) or (ii) hereof, representations and warranties that are made as of a specified particular date or period shall be so true and correct (in the manner set forth in clauses (i) or (ii), as described above applicable) only as of such specified date or period; . Agreement and provided further, however, that (i) the representations and warranties contained in Section 3.1(a) (Qualification, Organization, Subsidiaries, etc.) (with respect to the Company only), Section 3.20 (Finders or Brokers) and Section 3.21 (State Takeover Statutes; Rights Agreement) shall be true and correct in all material respects and (ii) the representations and warranties contained in Section 3.2 (Capital Stock) shall be true and correct in all respects, except for such inaccuracies as are de minimis in nature and amount relative to each such representation and warranty taken as a whole and (iii) the representations and warranties contained in Section 3.3(a) (Corporate Authority Relative to this Agreement; Noncontravention), the second sentence Plan of Section 3.9 (Absence of Certain Changes or Events), Section 3.18 (Opinion of Financial Advisor) and Section 3.19 (Required Vote of the Company Shareholders Under Applicable Law) shall be true and correct in all respects;Merger -56- (b) The Company shall have in all material respects performed all obligations and complied in all material respects with all covenants required by this Agreement to be performed or complied with by it at or prior to the Effective Time; and. (c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by a senior executive officer of the Company (other than any Affiliate of Parent)its Chief Executive Officer or Chief Financial Officer, certifying to the effect that the conditions set forth in Sections Section 6.3(a), Section 6.3(b) and Section 6.3(b6.3(d) have been satisfied;. (d) Parent and Merger Sub shall have received the proceeds of the Financing as contemplated by the Financing Commitments; and (e) Since the date of this Agreement, Agreement there shall not have been any occurred a Company Material Adverse Effect; provided, however, that, for the purposes of this Section 6.3(e), facts, circumstances, events, changes, effects or occurrences that are . (e) All Company Approvals as set forth in on Section 3.4(b) of the Company Disclosure Schedule shall have been made or obtained, as the case may be. (f) All approvals, consents, waivers and agreements of, and filings and notifications to, the third parties identified on Section 6.3(f) of the Company Disclosure Schedule shall have been made or obtained, as the case may be. (g) The Company and its Subsidiaries shall have at least $200,000,000 in aggregate commitments under the Warehouse Facilities and the advance rates thereunder shall not have been materially reduced and the eligibility criteria contained therein shall not have been amended or modified in a manner that is materially adverse to the extent that it is reasonably apparent that such disclosure is relevantCompany and its Subsidiaries. (h) will The Company and its Subsidiaries shall have unrestricted cash and undrawn availability under the Warehouse Facilities of at least $8,500,000 in the aggregate. (i) The number of Dissenting Shares for which demands for appraisal have been made and not be taken into account for purposes been withdrawn shall not exceed 12.5% of determining whether a the outstanding shares of Company Material Adverse Effect has occurredCommon Stock.