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

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on 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 Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(dSections 3.2(a), Section 3.10(b3.10(a)(ii) and Section 3.213.10(b)) that are qualified by Company 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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, (ii) this Agreement (other than Sections 3.2(a), 3.10(a)(ii) and 3.10(b) and those representations and warranties qualified by Company Material Adverse Effect) 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 for such failures to be true and correct as are not having or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (iii) Section 3.2 3.2(a) 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b3.10(a)(ii) and Section 3.21 shall be true and correct both at and as of the date of this Agreement and (v) Section 3.10(b) shall be true and correct 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 particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and or (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. The foregoing conditions are for the sole benefit of Parent and may, subject to the terms of this Agreement, be waived by Parent, in whole or in part at any time and from time to time, in the sole discretion of Parent. The failure by Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time prior to the Effective Time.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, or the waiver by the Parent on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of the Company set forth in herein (i) this Agreement (other than with respect to Section 3.2, Section 3.3(a)-(d3.2(a), Section 3.10(b) 3.3(a), Section 3.19 and Section 3.21) 3.20 shall be true and correct both at when made 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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, as if made at and as of such time (iiiexcept to the extent expressly made as of an earlier date, in which case as of such date), in all respects (except in the case of Section 3.2(a) Section 3.2 for such inaccuracies as are de minimis in the aggregate) and (ii) with respect to all other representations and warranties shall be true and correct at both when made 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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 if made at and as of such time (except to the Closing Date; providedextent expressly made as of an earlier date, howeverin which case as of such date), that except in the case of clause (ii) where the failure of such representations and warranties that are made as of a particular date or period shall to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) does not have, and would not reasonably be expected to have, individually or in the manner set forth in clauses (i)aggregate, (ii) and (iii), as applicable) only as of such date or perioda Company Material Adverse Effect. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any A Company Material Adverse Effect or any event or development that couldshall not have occurred, individually or in since the aggregate, reasonably be expected to result in a Company Material Adverse Effectdate hereof. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officerChief Financial Officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) ), and Section 6.3(c) have been satisfied. (e) The Company shall have received the third party consent set forth on Section 6.3(e) of the Parent Disclosure Schedule.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on (to the extent such waiver is allowed by applicable Law) at or prior to the Effective Time of, the following conditions: (a) (i) The Company Fundamental Representations 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 such date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date); and (ii) the other representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) Article III shall be true and correct both at and (without giving effect to any “materiality,” “in all material respects,” “Company Material Adverse Effect” or similar qualifiers) as of the date of this Agreement and at and as of the Closing Date Date, as though if made at and as of such time (except to the Closing Date extent 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 regard to any qualifications or exceptions as to “materiality”, ,” “in all material respects,” “Company Material Adverse Effect and Effect” or similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) The Company shall 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 them prior to the Effective Time. (c) Since the date of this AgreementSeptember 30, 2013, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated certificate executed by an authorized officer of the Closing Date and signed by its Chief Executive Officer or another senior officer, Company certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied. (e) Parent shall have received from the Company an affidavit, signed under penalties of perjury, stating that the Company is not and has not been a United States real property holding corporation, dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h), together with evidence reasonably satisfactory to Parent that the Company has provided notice to the Internal Revenue Service in accordance with the provisions of Treasury Regulation §1.897-2(h)(2). (f) The Company shall have used the proceeds of the New NewPage Term Loan Facility only in accordance with Section 5.20(b).

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The (i) the representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.213.2(a) shall be true and correct both at and in all respects (except for only de minimis inaccuracies) as of the date of this Agreement and at and as of the Closing Date Date, as though made at on and as of the Closing Date (without regard except to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would notthe extent expressly made as of an earlier date, in the aggregate, reasonably be expected to have a Company Material Adverse Effectwhich case as of such date), (ii) the representations and warranties of the Company set forth in Section 3.3(a)-(c) 3.1(a), Section 3.2 (other than Section 3.2(a)), Section 3.3(a), Section 3.19, Section 3.20 and Section 3.22 shall be true and correct in all material respects respects, both at when made 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) and (iii) Section 3.2 the other representations and warranties of the Company set forth in Article III shall be true and correct at both when made 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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 if made at and as of such time (except to the Closing Date; providedextent expressly made as of an earlier date, howeverin which case as of such date), that except with respect to this clause (iii) where the failure of such representations and warranties that are made as of a particular date or period shall to be so true and correct (without regard to any qualifications or exceptions contained as to materiality or Company Material Adverse Effect contained in such representations and warranties) has not had or would not have, individually or in the manner set forth in clauses (i)aggregate, (ii) and (iii), as applicable) only as of such date or period.a Company Material Adverse Effect; (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 prior to the Effective Time.; (c) Since the date of this Agreement, there shall has not have occurred been any Company Material Adverse Effect event, change, effect, development or any event or development that couldoccurrence that, individually or in the aggregate, has had or would reasonably be expected to result in have a Company Material Adverse Effect.; (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officerChief Financial Officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied; and (e) Parent shall have received a written opinion from Wachtell, Lipton, Xxxxx & Xxxx, counsel to Parent, dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Such counsel shall be entitled to rely upon representation letters, including representation letters from each of Parent and the Company, in each case, in form and substance satisfactory to such counsel.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than in Section 3.23.2(a), Section 3.3(a)-(d3.2(e), Section 3.10(b) and Section 3.213.10(c)) 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 Date, except where such failures to be so true and correct (without regard to “materiality”, ,” Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct ) would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c3.2(a) 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, (iiiSection 3.2(e) Section 3.2 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 for de minimis any immaterial inaccuracies, and (iviii) Section 3.3(d), Section 3.10(b) and Section 3.21 3.10(c) 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period.; (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 prior to the Effective Time.; and (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied6.3(b).

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on 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 Section 3.2Sections 3.2 and 3.10) that are qualified by Company 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, Section 3.3(a)-(d), Section 3.10(b(ii) this Agreement (other than Sections 3.2 and Section 3.213.10 and those representations and warranties qualified by Company 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties)Date, except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 3.10 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Parent shall have received from Parent’s Counsel, a written opinion dated as of the Closing Date to the effect that for U.S. federal income tax purposes the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, Parent’s Counsel shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Tax Representation Letters described in Section 5.17.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, the following conditions: (a) The Each of the representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2Agreement, Section 3.3(a)-(d)in each case, Section 3.10(b) made as if none of such representations and Section 3.21) warranties contained any qualifications or limitations as to “materiality”, shall be true and correct both at and correct, 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 Date (without regard except to “materiality”, Company Material Adverse Effect and similar qualifiers contained the extent in either case that such representations and warrantieswarranties speak as of another date), except where the failure of such failures representations and warranties to be so true and correct would as so made does not have and is not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, (ii) Section 3.3(a)-(c) however, that, notwithstanding the foregoing, each of the representations and warranties of the Company set forth in Sections 4.2, 4.3(a), 4.3(b), 4.18 and 4.19 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 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 on and as of the Closing Date, except for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) The Company shall have performed in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this AgreementJanuary 1, 2011, there shall not have occurred any Company Material Adverse Effect event, change, effect, development, condition or occurrence (excluding any event event, change, effect, development, condition or development occurrence resulting from obligations or conditions imposed by a Governmental Entity in connection with its approval of the transactions contemplated by this Agreement that coulddoes not constitute a Burdensome Action) that has had or would reasonably be expected to have, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior executive officer, certifying to the effect that the conditions set forth in Section 6.3(aSections 7.3(a), Section 6.3(b7.3(b) and Section 6.3(c7.3(c) have been satisfied. (e) Parent shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP a written opinion dated as of the Closing Date to the effect that for U.S. federal income tax purposes the Merger should qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, Parent’s Counsel shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Tax Representation Letters described in Section 6.16.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than in Section 3.2, Section 3.3(a)-(d3.2(a), Section 3.10(b3.2(b) and Section 3.213.10(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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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, except where such failures to be so true and correct (iiiwithout regard to “materiality,” Company Material Adverse Effect and similar qualifiers contained in such representations and warranties) have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) Section 3.2 3.2(a) and Section 3.2(b) 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 for any de minimis inaccuracies, and (iviii) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) The Company shall have in all material respects (i) performed all obligations and (ii) complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Parent shall have received a written opinion from Xxxxxxxx & Xxxxx LLP, counsel to Parent, or such other reputable law firm of national standing, reasonably acceptable to Parent (or if any such counsel is unable to deliver such opinion, Xxxxx Xxxxx L.L.P.), dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Such counsel shall be entitled to receive and rely upon representations, warranties and covenants of officers of Parent and the Company and any of their respective affiliates and Representatives, in each case, in form and substance reasonably satisfactory to such counsel, including Tax representation letters in substantially the forms attached hereto as Exhibits C and D, dated as of the date of such opinion.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(din Sections 3.2(a), Section 3.10(b3.2(b) and Section 3.213.10(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 Date, except where such failures to be so true and correct (without regard to “materiality”, ,” Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct ) would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(cSections 3.2(a) 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, (iii3.2(b) Section 3.2 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 for any de minimis inaccuracies, and (iviii) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall need be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Parent shall have received a written opinion from Wachtell, Lipton, Xxxxx & Xxxx, counsel to Parent, or another firm of national reputation, dated as of the Closing Date, and based on the facts, representations, assumptions and exclusions set forth or described in such opinion, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Such counsel shall be entitled to rely upon representation letters from each of Parent and the Company, in each case, in form and substance reasonably satisfactory to such counsel. Each such representation letter shall be dated as of the date of such opinion. The condition set forth in this Section 6.3(d) shall not be waivable after receipt of the Company Stockholder Approval if such waiver would require further stockholder approval to be obtained, unless further stockholder approval is obtained with appropriate disclosure.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, satisfaction or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) which are qualified by a “Company Material Adverse Effect” qualification shall be true and correct both 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such ii) the representations and warranties), except where such failures to be so true and correct would not, warranties of the Company set forth in the aggregate, reasonably be expected to have this Agreement which are not qualified by a “Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 ” qualification 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 shall such failures to be true and correct both at and as of would not have, in the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Dateaggregate, a Company Material Adverse Effect; provided, however, that that, with respect to clauses (i) and (ii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), ) or (ii) and (iii), as applicable) only as of such date or period. (b) The Company shall have in all material respects performed all obligations and complied with all covenants the agreements required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) The Company shall deliver to Parent and Merger Sub a FIRPTA affidavit of its belief that the Company is not and has not been a United States real property holding corporation, dated as of the Closing Date and in form and substance reasonably acceptable to Parent.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company Partnership set forth in (i) this Agreement (other than in Section 3.2, Section 3.3(a)-(d3.2(a), the first sentence of Section 3.10(b3.2(e) and Section 3.213.10(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 Date, except where such failures to be so true and correct (without regard to “materiality”, Company ,” Partnership Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct ) would not, in the aggregate, reasonably be expected to have a Company Partnership Material Adverse Effect, (ii) Section 3.3(a)-(c3.2(a) shall be true and correct in all material respects both at and as the first sentence of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, (iiiSection 3.2(e) Section 3.2 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 for de minimis any immaterial inaccuracies, and (iviii) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period.; (b) The Company Partnership 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 prior to the Effective Time.; (c) Since Parent shall have received an opinion of Xxxxxxxx & Xxxxx LLP (or, if Xxxxxxxx & Xxxxx LLP is unable or unwilling to render such an opinion, the date written opinion of this Agreement, there shall another nationally recognized counsel as may be reasonably acceptable to Parent) dated as of the Closing Date to the effect that for U.S. federal income tax purposes (i) Parent should not have occurred recognize any Company Material Adverse Effect income or gain as a result of the Merger and (ii) no gain or loss should be recognized by holders of Parent Common Units (in their capacity as holders of Parent Common Units) immediately prior to the Merger as a result of the Merger (other than any event gain or development that could, individually or in the aggregate, reasonably be expected to result loss resulting from any decrease in a Company Material Adverse Effect.holder’s share of partnership liabilities pursuant to Section 752 of the Code). In rendering such opinion, Xxxxxxxx & Xxxxx LLP shall be entitled to receive and rely upon the Parent Tax Certificate, the Partnership Tax Certificate and any other representations, warranties and covenants of officers of Parent, the Partnership and any of their respective affiliates as to such matters as such counsel may reasonably request; (d) The Company Partnership shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied; and (e) There shall not have occurred since the date of this Agreement a Partnership Material Adverse Effect.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, or the waiver by the Parent on or prior to the Initial Date or Effective Time (as the case may be) of, the following conditions: (a) The representations and warranties of the Company set forth in herein (i) this Agreement (other than with respect to Section 3.2, Section 3.3(a)-(d3.2(a), Section 3.10(b) 3.3(a), Section 3.23 and Section 3.21) 3.24 shall be true and correct both at and as of the date of this Agreement when made and at and as of the Closing Date Initial Date, as though if made at and as of such time (except to the Closing Date extent expressly made as of an earlier date, in which case as of such date), in all respects (without regard except in the case of Section 3.2(a) for such inaccuracies as are de minimis in the aggregate) and (ii) with respect to “materiality”all other representations and warranties shall be true and correct both when made and at and as of the Initial Date, Company Material Adverse Effect as if made at and similar qualifiers contained 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 clause (ii) where the failure of such representations and warranties), except where such failures warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) does not have, and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any A Company Material Adverse Effect or any event or development that couldshall not have occurred, individually or in since the aggregate, reasonably be expected date hereof to result in a Company Material Adverse Effectthe Initial Date. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officerChief Financial Officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) ), and Section 6.3(c) have been satisfied. (e) (i) the Company Approvals and the Parent Approvals shall have been obtained (including, in each case, the expiration or termination of the waiting periods (and any extensions thereof) under the HSR Act applicable to the Transactions, including the Merger) at or prior to the Effective Time, and such approvals shall have become Final Orders and (ii) such Final Orders of the FERC, the FTC, the DOJ or the PUCO shall not impose terms or conditions that would individually or in the aggregate reasonably be expected to have, (x) for the Company,

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (ai) The representations and warranties of the Company contained herein (other than the representations and warranties in Sections 3.2(a) and 3.3(a)) shall be true and correct as of the Effective Time with the same effect as though made as of the Effective Time, except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and (z) where any such failure of the representations and warranties in the aggregate to be true and correct would not reasonably be expected to have a Material Adverse Effect on the Company (without giving effect to any “materiality” or “Material Adverse Effect” qualifications contained therein); and (ii) the representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(bSections 3.2(a) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c3.3(a) shall be true and correct in all material respects both when made and at and as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak 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 shall or some other date 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only determined as of such date or period.date; (b) The Company Company, shall 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 prior to the Effective Time.; (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, Executive Vice President certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Except as disclosed in the Company SEC Documents (excluding any disclosures set forth in any section of a filed Company SEC Document entitled “Risk Factors” or “Forward-Looking Statements” or any other disclosures included in such filings to the extent that they are forward-looking in nature) or in the Company Disclosure Schedule or as expressly contemplated by this Agreement, since the date of this Agreement, there shall have been no event, occurrence, development or state of circumstances or facts that would reasonably be expected to have a Material Adverse Effect on the Company.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (ai) The representations and warranties of the Company contained herein (other than the representations and warranties in Sections 3.2(a), 3.3(a), 3.4(b) and 3.10) shall be true and correct as of the Effective Time with the same effect as though made as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and (z) where any such failure of the representations and warranties in the aggregate to be true and correct would not reasonably be expected to have a Material Adverse Effect on the Company; (ii) the representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(dSections 3.2(a), Section 3.10(b3.3(a) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c3.4(b) shall be true and correct in all material respects both when made and at and as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and at (iii) the representations and warranties contained in Section 3.10 shall have been true and correct in all respects when made and as of the Closing Date as though made at and as of the Closing Date, (iii) Section 3.2 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period.Effective Time; (b) The Company Company, shall have performed in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time.; (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, Executive Vice President certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Except as disclosed in the Company SEC Documents or in the Company Disclosure Schedule or as expressly contemplated by this Agreement, since the date of this Agreement, there shall have been no event, occurrence, development or state of circumstances or facts that would reasonably be expected to have a Material Adverse Effect on the Company.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, (or the written waiver by Parent on or prior to the Effective Time of, and Merger Sub) of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) which are qualified by a “Company Material Adverse Effect” qualification shall be true and correct both 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such ii) the representations and warranties), except where such failures to be so true and correct would not, warranties of the Company set forth in the aggregate, reasonably be expected to have this Agreement which are not qualified by a “Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 ” qualification 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 shall such failures to be true and correct both at and as of would not, in the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Dateaggregate, reasonably be expected to have 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 particular date or period shall be true and correct (in the manner set forth in clauses (i), ) or (ii) and (iii), as applicable) ), only as of such date or period.; and provided further that the representations and warranties of the Company set forth in Section 3.2(a) and (b) (in each case to the extent relating to capital stock of the Company) (other than de minimis exceptions) , the second sentence of Section 3.10 and Section 3.13 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 (other than such specified representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct except for de minimis exceptions to the extent applicable as of such other 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 prior to the Effective Time.; and (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than in the first and second sentence of Section 3.2, Section 3.3(a)-(d3.2(a), Section 3.10(b3.2(b) and Section 3.213.10(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 Date, except where such failures to be so true and correct (without regard to “materiality”, ,” Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct ) would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) the first and second sentence of Section 3.3(a)-(c3.2(a) 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, (iiiSection 3.2(b) Section 3.2 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 for any de minimis inaccuracies, and (iviii) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(dSections 3.2(a), Section 3.10(b3.10(a)(ii) and Section 3.213.10(b)) that are qualified by Company 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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, (ii) this Agreement (other than Sections 3.2(a), 3.10(a)(ii) and 3.10(b) and those representations and warranties qualified by Company Material Adverse Effect) 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 for such failures to be true and correct as are not having or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (iii) Section 3.2 3.2(a) 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b3.10(a)(ii) and Section 3.21 shall be true and correct both at and as of the date of this Agreement and (v) Section 3.10(b) shall be true and correct 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 particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and or (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Parent shall have received an opinion from Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP or Sidley Austin LLP, on the basis of representations and warranties set forth or referred to in such opinion, dated as of the Closing Date, to the effect that the Merger will be treated as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, such counsel shall be entitled to receive and rely upon representations, warranties and covenants of officers of Parent, Merger Sub, the Company or others reasonably requested by such counsel. The foregoing conditions are for the sole benefit of Parent and may, subject to the terms of this Agreement, be waived by Parent, in whole or in part at any time and from time to time, in the sole discretion of Parent. The failure by Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time prior to the Effective Time.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement Section 4.1, Section 4.2 (other than Section 3.2, Section 3.3(a)-(d4.2(f)), Section 3.10(b) 4.3 (other than Section 4.3(c)), Section 4.10(b), Section 4.18 and Section 3.21) 4.20 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such except for representations and warrantieswarranties that expressly speak only as of a specific date or time other than the Closing Date, which need only be true and correct as of such other date or time), except where such failures for de minimis inaccuracies with respect to be so true the representations and correct would not, warranties in the aggregate, reasonably be expected to have a Company Material Adverse EffectSection 4.2 (other than Section 4.2(f)) and Section 4.3 (other than Section 4.3(c)), (ii) the representations and warranties of the Company set forth in Article IV other than those referenced in clause (i) of this Section 3.3(a)-(c7.3(a) shall be true and correct in all material respects (disregarding any qualifications with respect to materiality or “Company Material Adverse Effect” contained therein) 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 for representations and warranties that expressly speak only as of a specific date or time other than the Closing Date, (iii) Section 3.2 shall which need only be true and correct at and as of such other date or time), except, in the date case of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and clause (iv) Section 3.3(dii), Section 3.10(b) where the failure of such representations and Section 3.21 shall warranties to be so true and correct both at has not had 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; providedwould not reasonably be expected to have, however, that representations and warranties that are made as of a particular date individually or period shall be true and correct (in the manner set forth in clauses (i)aggregate, (ii) and (iii), as applicable) only as of such date or perioda Company Material Adverse Effect. (b) The Company shall 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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officeran executive officer of the Company, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(bSections 7.3(a) and Section 6.3(c7.3(b) have been satisfied. (d) Parent shall have received from Parent’s Counsel, a written opinion dated as of the Closing Date to the effect that for U.S. federal income tax purposes the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code (the “Parent Tax Opinion”). (e) Parent shall have received a copy of the Company Tax Opinion.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on 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 Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c3.3(a) — (c) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that couldwould, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment ofsatisfaction, or to the extent permitted by applicable Law, written waiver by Parent on at or prior to the Effective Time of, of each of the following conditions: (a) The (i) the representations and warranties of the Company set forth in (i) this Agreement (other than excluding the representations and warranties of Company set forth in Section 3.2, Section 3.3(a)-(d3.1(b)(ii) and (iii) (Obligations With Respect to Capital Stock and Company Stock Plans), Section 3.10(b3.1(c) (Corporate Authority), Section 3.1(d)(ii)(A) and (B) (compliance with charter; no liquidation), Section 3.1(h)(ii) (absence of Company Material Adverse Effect), Section 3.1(l) (Anti-takeover Statutes), Section 3.1(t) (Vote Required) and Section 3.213.1(y) (Opinion of Financial Advisor) (the “Special Reps”) and the representations and warranties of Company set forth in Section 3.1(b)(i) (Capital Stock and Option Information)) shall be true and correct both at and (without regard to any qualification as to materiality or Company Material Adverse Effect) 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 Date (without regard other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be so true and correct as of such other date), except to “materiality”, Company Material Adverse Effect and similar qualifiers contained in the extent that the failure of such representations and warranties), except where such failures warranties to be so true and correct would notcorrect, individually or in the aggregate, does not have or would not reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) the Special Reps 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 on and as of the Closing DateDate (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be so true and correct as of such other date), and (iii) the representations and warranties of Company set forth in Section 3.2 3.1(b)(i) (Capital Stock and Option Information) 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 and as of the Closing Date, except for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 shall be true and correct both at and as of the date of this Agreement and at on and as of the Closing Date as though made at and as of the Closing Date; provided, however, that (other than representations and warranties within such Section 3.1(b)(i) (Capital Stock and Option Information) that are made by their terms speak as of a particular date or period another date, which representations and warranties shall be so true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date other date), except to the extent that the failure of such representations and warranties to be so true and correct, individually or period.in the aggregate, does not increase or would not reasonably be expected to increase the aggregate consideration payable hereunder to the holders of Common Shares, Preferred Shares and Company Options and to ESPP participants by more than $85,000 (Eighty Five Thousand Dollars); (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 prior to the Effective Time.; (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another a senior officerofficer of Company, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(d) have been satisfied; and (d) As of the Closing, Company and its Subsidiaries shall have on a consolidated basis Cash and Marketable Securities totaling at least $15,000,000 (Fifteen Million Dollars), of which not less than $7,500,000 (Seven Million Five Hundred Thousand Dollars) shall be in Cash (treating all fees and expenses incurred by Company in connection with this Agreement and the transactions contemplated hereby, whether or not paid, as if they were paid in Cash prior to the Closing Date, and none of which Marketable Securities shall be an auction rate or similar security or involved or potentially involved in a Securities Investors Protection Act action or claim) all of which Cash and Marketable Securities shall be located in bank or brokerage accounts in the United States (other than Cash in an amount not to exceed $2,000,000 (Two Million Dollars) in the aggregate which may be located in operating accounts of Company’s Canadian and United Kingdom Subsidiaries), and all of which Cash and Marketable Securities shall be reflected in a final statement delivered to Parent by Company two (2) business days before Closing setting forth the calculation of such amounts estimated as of the Closing. (e) Each of the actions set forth on Section 6.3(e) of the Company Disclosure Schedules shall have been taken with respect to the contracts listed on such Schedule in accordance with such Schedule and shall be in full force and effect as of the Closing Date. provided, however, that securing the Financing, if any, or any portion thereof, on terms and conditions satisfactory to Parent or otherwise, shall not constitute a condition of Parent or Merger Sub to effect the Merger. In furtherance of the foregoing, whether or not Parent or Merger Sub seeks to secure such Financing to pay some or all of the Merger Consideration, Preferred Merger Consideration or other costs of the Merger, in no event shall the failure to obtain the Financing in and of itself affect the obligations of Parent and Merger Sub under the terms of this Agreement (provided that the underlying causes of any such failure may be considered in determining whether the conditions set forth in this Section 6.3 have been satisfied, if such underlying causes would independently result in the conditions set forth in this Section 6.3 not having been met).

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company contained herein (other than the representations and warranties in Sections 3.2(a) and 3.3(a)) shall be true and correct as of the Effective Time with the same effect as though made as of the Effective Time, except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and (z) where any such failure of the representations and warranties in the aggregate to be true and correct would not reasonably be expected to have a Material Adverse Effect on the Company (without giving effect to any “materiality” or “Material Adverse Effect” qualifications contained therein); and (ii) the representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(bSections 3.2(a) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c3.3(a) shall be true and correct in all material respects both when made and at and as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak 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 shall or some other date 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only determined as of such date or period.date; (b) The Company Company, shall 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 prior to the Effective Time.; (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, Executive Vice President certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Except as disclosed in the Company SEC Documents (excluding any disclosures set forth in any section of a filed Company SEC Document entitled “Risk Factors” or “Forward-Looking Statements” or any other disclosures included in such filings to the extent that they are forward-looking in nature) or in the Company Disclosure Schedule or as expressly contemplated by this Agreement, since the date of this Agreement, there shall have been no event, occurrence, development or state of circumstances or facts that would reasonably be expected to have a Material Adverse Effect on the Company.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement Article III (other than Section in Sections 3.1 (first sentence only), 3.2, Section 3.3(a)-(d3.3(a), Section 3.3(c)(ii), 3.10(b) ), 3.22, 3.23 and Section 3.213.24) 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 Date, except where such failures to be so true and correct (without regard to “materiality”, Company ,” Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct ) would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect on the Company, (ii) Section 3.3(a)-(c3.2(a) shall be true and correct (without regard to “materiality,” Material Adverse Effect and similar qualifiers contained in all material respects both at such representations 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, (iiiwarranties) Section 3.2 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 for any de minimis inaccuracies, (iii) Sections 3.1 (first sentence only), 3.2(b)-(d) 3.3(a), 3.3(c)(ii), 3.22, 3.23 and 3.24 shall be true and correct (without regard to “materiality,” Material Adverse Effect 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 Closing Date as though made at and as of the Closing Date and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii) and (iiiiv), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred been any Company Material Adverse Effect or any event fact, change, circumstance, event, occurrence, condition or development that couldthat, individually or in the aggregate, has had or would reasonably be expected to result in have a Company Material Adverse EffectEffect on the Company. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than the first four sentences of Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) 3.2 shall be true and correct both at and in all respects (except for any de minimis inaccuracies) 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 to the Closing Date (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would notextent expressly made as of an earlier date, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, which case as of such date); (ii) the other representations and warranties of the Company set forth in Section 3.3(a)-(c) 3.2, and the representations and warranties of the Company set forth in the first two sentences of Section 3.1, Section 3.3(a), Section 3.23 and Section 3.24 shall be true and correct in all material respects respects, both at when made 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) and (iii) Section 3.2 the other representations and warranties of the Company set forth in Article III shall be true and correct at both when made 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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 if made at and as of such time (except to the Closing Date; providedextent expressly made as of an earlier date, howeverin which case as of such date), that except with respect to this clause (iii) where the failure of such representations and warranties that are made as of a particular date or period shall to be so true and correct (without regard to any qualifications or exceptions contained as to materiality or Company Material Adverse Effect contained in such representations and warranties except with respect to Section 3.10(b)) individually or in the manner set forth in clauses (i)aggregate, (ii) and (iii), as applicable) only as of such date or periodhas not had a Company Material Adverse Effect. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall has not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in been a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officerChief Financial Officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than the representations and warranties set forth in Section 3.2, Section 3.3(a)-(d3.2 (Capital Stock), Section 3.10(b3.3(d) (No Violation – Indebtedness) and Section 3.21Sections 3.8(a)(i)(B) shall be true and correct both at and as 3.8(b) (Absence of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warrantiesCertain Changes or Events), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) shall be true and correct in all material respects both at and (without giving effect to any materiality or Company Material Adverse Effect qualifications 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, (iii) Section 3.2 provided, however, that the representations and warranties that address matters only as of a particular date, shall be true and correct at in all respects as of that date (without giving effect to any materiality or Company Material Adverse Effect qualifications contained therein)), except for such failures to be true and correct as have not had and would not reasonably be expected to have, in the aggregate, a Company Material Adverse Effect. The representations and warranties set forth in Section 3.2 (Capital Stock) and Section 3.3(d) (No Violation – Indebtedness) shall be true and correct 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 DateDate (provided, except for de minimis inaccuracieshowever, that the representations and (iv) Section 3.3(d)warranties that address matters only as of a particular date, Section 3.10(b) and Section 3.21 shall be true and correct both at in all respects as of that date. The representations and warranties set forth in Sections 3.8(a)(i)(B) and 3.8(b) (Absence of Certain Changes or Events) shall be true and correct in all 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; Date (provided, however, that the representations and warranties that are made address matters only as of a particular date or period date, shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only all respects as of such date or periodthat date). (b) The Company shall have in all material respects performed all obligations and complied with all covenants the agreements required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since The Company and its Subsidiaries shall have (i) refinanced any existing indebtedness for borrowed money with an original maturity of greater than one (1) year that matures prior to Closing with new indebtedness with a maturity greater than one (1) year and otherwise on terms consistent in all material respects, taking into account changes in market conditions, with the terms of the existing indebtedness (including, with respect to the refinancing of any Subject Arrangements, the terms of the Debt Consents); (ii) replaced or renewed any performance bond or note guarantee that has an expiration date prior to the Effective Time with a new performance bond or note guarantee, as applicable, on terms and conditions, generally consistent with the performance bond or note guarantee being replaced, taking into account changes in market conditions, in each case to the extent required under the Contract requiring the Company or its subsidiaries to provide such performance bond or note guarantee; and (iii) obtained committed working capital lines of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or credit in the aggregate, an amount no less than $25,000,000 from financial institutions and on terms and conditions reasonably be expected satisfactory to result in a Company Material Adverse EffectParent. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior an authorized officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied. (e) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by an authorized officer in a form reasonably acceptable to Parent for purposes of satisfying Parent's obligations under Treasury Regulation Section 1.1445-2(c)(3).

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of(or express written waiver, or the waiver in its sole discretion, by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The the representations and warranties of the Company set forth in this Agreement, other than the representations and warranties set forth in Section 4.3(a), Section 4.2(a) or Section 4.2(b), (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) that are not qualified by Company Material Adverse Effect shall be true and correct both at (without giving effect to any “materiality” qualifiers set forth therein) except for such failures to be true and correct as of would not, in the date of this Agreement aggregate, reasonably be expected to have a Company Material Adverse Effect and at (ii) that are qualified by Company Material Adverse Effect shall be true and correct in all respects, in each case as of the Closing Date as though made at and as of the Closing Date (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would notor, in the aggregatecase of those representations and warranties that are made as of a particular date or period, reasonably be expected to have a as of such date or period). The representations and warranties of the Company Material Adverse Effectset forth in Section 4.3(a), (iiSection 4.2(a) and Section 3.3(a)-(c4.2(b) 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 DateDate (or, (iii) Section 3.2 shall be true and correct at and as in the case 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that those representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i)period, (ii) and (iii), as applicable) only as of such date or period.); (b) The Company shall have (i) in all respects performed all obligations and complied with all covenants contemplated by Section 3.3(e) and (ii) in all material respects performed all obligations and complied with all covenants required by this Agreement (other than Section 3.3(e)) to be performed or complied with by it prior to the Effective Time.; (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated certificate executed by a senior officer of the Closing Date and signed by its Chief Executive Officer or another senior officer, Company certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b7.3(a) and Section 6.3(c7.3(b) have been satisfied; (d) Since the date of this Agreement, no Company Material Adverse Effect shall have occurred; and (e) Written objections to the Merger and/or written notice of intention and/or election to dissent, in each case given to the Company pursuant to Section 179 of the BVI Act, shall not have been given by shareholders of the Company who in aggregate hold (i) Ordinary Shares exceeding 10% of the issued and outstanding Company Ordinary Shares; or (ii) Convertible Preference Shares exceeding 10% of the issued and outstanding Convertible Preference Shares; or (iii) Shares exceeding 10% of the issued and outstanding Shares (calculated on an As Converted Basis (as defined in the Memorandum)).

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company contained herein (other than the representations and warranties in Section 3.2(a), the first sentence of Section 3.2(c), Section 3.3(a), the first sentence of Section 3.21(d) and the first sentence of Section 3.29) shall be true and correct as of the Effective Time with the same effect as though made as of the Effective Time, except (x) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and (y) where any such failure of the representations and warranties in the aggregate to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company (without giving effect to any “materiality” or “Material Adverse Effect” qualifications contained therein); and (ii) the representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.23.2(a), the first sentence of Section 3.3(a)-(d3.2(c), Section 3.10(b3.3(a), the first sentence of Section 3.21(d) and the first sentence of Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 3.29 shall be true and correct in all material respects both when made and at and as of the Effective Time except that the accuracy of representations and warranties that by their terms speak 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 shall or some other date 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only determined as of such date or period.and not as of the Effective Time; (b) The Company Company, shall 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 prior to the Effective Time.; (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect been no event, occurrence, development or any event state of circumstances or development facts that couldhas had, or would reasonably be expected to have, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.Effect on the Company; and (d) The Company shall have delivered to Parent (i) a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officerExecutive Vice President, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c(b) have been satisfied, and (ii) certificates, dated the Closing Date and signed by its Secretary, as to the matters set forth in Sections 5.20 and 5.22. (e) The energy business-related PSC Consents requested in the PSC Submissions set forth in Section 6.3(e) of the Parent Disclosure Letter, shall have been obtained from, or in the case of PSC Consents that only require notification to a State PSC, made to, the applicable State PSCs, and any conditions thereof shall have been satisfied and such PSC Consents shall not have been revoked.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is are further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth contained in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(dthe representations and warranties contained in SECTION 3.2(a), Section 3.10(bSECTION 3.2(b) and Section 3.21SECTION 3.2(d)) shall be true and correct both at as of the Effective Time as though made on and as of the date Effective Time except (A) for changes specifically permitted by the terms of this Agreement Agreement, (B) that those representations and at and warranties which address matters only as of the Closing Date as though made at a particular date shall be true and correct as of such particular date and (C) where the Closing Date (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures failure to be so true and correct correct, when taken together and disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, would not, in the aggregate, not reasonably be expected to have a Company Material Adverse Effect; (b) The representations and warranties of the Company contained in SECTION 3.2(a), (iiSECTION 3.2(b) Section 3.3(a)-(cand SECTION 3.2(d) shall be true and correct in all material respects both at as of the Effective Time as though made on and as of the date of this Agreement Effective Time, except that those representations and at and warranties which address matters only as of the Closing Date as though made at and as of the Closing Date, (iii) Section 3.2 a particular date 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period.particular date; (bc) The Company shall have performed in all material respects performed all obligations and complied with all material covenants required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.; and (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, Executive Vice President certifying to the effect that the conditions set forth in Section SECTION 6.3(a), Section SECTION 6.3(b) and Section SECTION 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company contained herein (other than the representations and warranties in Sections 3.2(a), 3.3(a), 3.4(b) and 3.10) shall be true and correct as of the Effective Time with the same effect as though made as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and (z) where any such failure of the representations and warranties in the aggregate to be true and correct would not reasonably be expected to have a Material Adverse Effect on the Company; (ii) the representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(dSections 3.2(a), Section 3.10(b3.3(a) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c3.4(b) shall be true and correct in all material respects both when made and at and as of the Effective Time except (x) for changes specifically permitted by the terms of this Agreement, (y) that the accuracy of representations and warranties that by their terms speak as of the date of this Agreement or some other date will be determined as of such date and at (iii) the representations and warranties contained in Section 3.10 shall have been true and correct in all respects when made and as of the Closing Date as though made at and as of the Closing Date, (iii) Section 3.2 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period.Effective Time; (b) The Company Company, shall have performed in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time.; (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, Executive Vice President certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Except as disclosed in the Company SEC Documents or in the Company Disclosure Schedule or as expressly contemplated by this Agreement, since the date of this Agreement, there shall have been no event, occurrence, development or state of circumstances or facts that would reasonably be expected to have a Material Adverse Effect on the Company.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment ofsatisfaction, or to the extent permitted by applicable Law, written waiver by Parent on at or prior to the Effective Time ofTime, of each of the following conditions: (a) The (i) the representations and warranties of the Company set forth in (i) this Agreement (other than excluding the representations and warranties of Company set forth in Section 3.2, Section 3.3(a)-(d3.1(b)(i), Section 3.10(b3.1(h)(ii), Section 3.1(l)(ii) and Section 3.213.1(w)) shall be true and correct both at and (without regard to any qualification as to materiality or Company Material Adverse Effect), 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 Date (without regard other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct as of such other date), except to “materiality”, Company Material Adverse Effect and similar qualifiers contained in the extent that the failure of such representations and warranties), except where such failures warranties to be so true and correct would notcorrect, individually or in the aggregate, does not have or would not reasonably be expected to have a Company Material Adverse Effect, and (ii) the representations and warranties of Company set forth in Section 3.3(a)-(c3.1(b)(i) (other than de minimis exceptions), Section 3.1(h)(ii), Section 3.1(l)(ii) and Section 3.1(w) 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 on and as of the Closing Date, (iii) Section 3.2 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time.; (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or Committee on Foreign Investment in the aggregateUnited States (“CFIUS”) shall have notified Parent and Company in writing that action under the Exon-Xxxxxx Provision is concluded with respect to the Agreement and the Merger, reasonably be expected to result and in a Company Material Adverse Effect.the event that CFIUS has undertaken an investigation, CFIUS has terminated such investigation; and (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another a senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on 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 Section 3.2, Section 3.3(a)-(d3.3(a)-(df), Section 3.10(b) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section SectionSections 3.3(a)-(c) and 3.3(e) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d) and (ef), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that couldcouldwould, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect consummate the Merger is shall be further subject to the fulfillment of, satisfaction (or the waiver by Parent on Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement ARTICLE III (other than Section 3.23.1, Section 3.3(a)-(d3.3, Section 3.4(a), Section 3.10(b) 3.5(a), Section 3.6, Section 3.14 and Section 3.213.23) shall be true and correct both (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 Closing Date as though made at and as of such times, except for such failures to be true and correct as would not reasonably be expected to have, in the Closing Date aggregate, a Material Adverse Effect on the Company, (ii) the representations and warranties set forth in Section 3.4(a) shall be true and correct (without regard to “"materiality”, Company ," Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 Datesuch times, except for any de minimis inaccuracies or issuances permitted pursuant to this Agreement (iii) the representations and warranties set forth in Section 3.2 3.1, Section 3.3, Section 3.5(a), Section 3.14 and Section 3.23 shall be true and correct (without regard to "materiality," Material Adverse Effect 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 Closing Date as though made at and as of the Closing Datesuch times, except for de minimis inaccuracies, other than with respect to any issuances permitted pursuant to this Agreement and (iv) the representation set forth in Section 3.3(d), Section 3.10(b) and Section 3.21 3.6 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 if made at and as of the Closing Datesuch time; provided, however, that with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses clause (i), (ii) and ), (iii)) or (iv) above, as applicable) only as of such date or period; provided further, however, that with respect to clauses (i), (iii) and (iv) above, such conditions shall not apply to any failure to be true and correct arising from or relating to the Company (A) failing to receive any waivers, consents, licenses, permits, authorizations, orders or approvals under any Antitrust Law or (B) being subject to any Action (or threatened Action) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law (each of the foregoing in subclauses (A) and (B) above, an "Excluded Company Event"). (b) The Company shall have performed in all material respects performed all the obligations and complied with all covenants required by agreements in this Agreement (other than the obligations set forth in Section 5.12(a) and Section 5.12(b)) and shall have complied in all material respects with the covenants to be performed or and complied with by it under this Agreement (other than the covenants set forth in Section 5.12(a) and Section 5.12(b)) at or prior to the Effective TimeClosing. The Company shall have performed in all respects the obligations and agreements set forth in Section 5.12(a) and Section 5.12(b) and shall have complied in all respects with the covenants to be performed and complied with by it under Section 5.12(a) and Section 5.12(b) at or prior to the Closing. (c) Since the date of this Agreement, there shall not have occurred any Events (other than Excluded Company Material Adverse Effect or any event or development that couldEvents) that, individually or in the aggregate, have had or would reasonably be expected to result in have a Company Material Adverse EffectEffect on the Company. (d) The Company shall have delivered to furnished Parent with a certificate, certificate dated the Closing Date and signed on its behalf by its the Chief Executive Officer or another senior officer, certifying to and the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.Chief Financial Officer of the

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, or the waiver by the Parent on or prior to the Initial Date or Effective Time (as the case may be) of, the following conditions: (a) The representations and warranties of the Company set forth in herein (i) this Agreement (other than with respect to Section 3.2, Section 3.3(a)-(d3.2(a), Section 3.10(b) 3.3(a), Section 3.23 and Section 3.21) 3.24 shall be true and correct both at and as of the date of this Agreement when made and at and as of the Closing Date Initial Date, as though if made at and as of such time (except to the Closing Date extent expressly made as of an earlier date, in which case as of such date), in all respects (without regard except in the case of Section 3.2(a) for such inaccuracies as are de minimis in the aggregate) and (ii) with respect to “materiality”all other representations and warranties shall be true and correct both when made and at and as of the Initial Date, Company Material Adverse Effect as if made at and similar qualifiers contained 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 clause (ii) where the failure of such representations and warranties), except where such failures warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) does not have, and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any A Company Material Adverse Effect or any event or development that couldshall not have occurred, individually or in since the aggregate, reasonably be expected date hereof to result in a Company Material Adverse Effectthe Initial Date. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officerChief Financial Officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) ), and Section 6.3(c) have been satisfied. (e) (i) the Company Approvals and the Parent Approvals shall have been obtained (including, in each case, the expiration or termination of the waiting periods (and any extensions thereof) under the HSR Act applicable to the Transactions, including the Merger) at or prior to the Effective Time, and such approvals shall have become Final Orders and (ii) such Final Orders of the FERC, the FTC, the DOJ or the PUCO shall not impose terms or conditions that would individually or in the aggregate reasonably be expected to have, (x) for the Company, a Company Material Adverse Effect or, (y) for Parent, a material adverse effect on the business, financial condition, assets, liabilities, operations or results of operations of Parent and its Subsidiaries, taken as a whole, after giving effect to the Merger and the terms and conditions of the Company Approvals and the Parent Approvals (provided that for the purpose of determining whether a potential adverse effect on the Parent and its Subsidiaries would constitute a material adverse effect for the purposes of this Section 6.3, Parent and its Subsidiaries, taken as a whole, shall be deemed to be a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size and scale of the Company, together with each of its Subsidiaries, taken as a whole). “Final Order” means action by the relevant Governmental Entity that has not been reversed, stayed, enjoined, set aside, annulled or suspended, with respect to which any waiting period prescribed by Law before the Transactions may be consummated (a “Final Order Waiting Period”) has expired and as to which all conditions to the consummation of the Transactions prescribed by Law, regulation or order required to be satisfied at or prior to the Effective Time have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect consummate the Merger is shall be further subject to the fulfillment of, satisfaction (or the waiver by Parent on Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement Article III (other than Section 3.1, Section 3.2, Section 3.3(a)-(d3.3, Section 3.4(a), Section 3.10(b) 3.5(a), Section 3.6(a), Section 3.15 and Section 3.213.22) shall be true and correct both (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 Closing Date as though made at and as of such times, except for such failures to be true and correct as would not have, in the Closing Date aggregate, a Material Adverse Effect on the Company, (ii) the representations and warranties set forth in Section 3.4(a) shall be true and correct (without regard to “materiality”, Company ” Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures for any de minimis inaccuracies and other than with respect to be so true and correct would not, in the aggregate, reasonably be expected any issuances permitted pursuant to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) shall be true and correct in all material respects both this Agreement 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 Datesuch times, (iii) the representations and warranties set forth in Section 3.2 3.1, Section 3.2, Section 3.3, Section 3.5(a), Section 3.15 and Section 3.22 shall be true and correct (without regard to “materiality,” Material Adverse Effect 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 Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, such times and (iv) the representation set forth in Section 3.3(d), Section 3.10(b3.6(a) and Section 3.21 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 if made at and as of the Closing Datesuch time; provided, however, that with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses clause (i), (ii) and ), (iii)) or (iv) above, as applicable) only as of such date or period. (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 TimeClosing. (c) Since the date of this Agreement, there shall not have occurred any Company Events that have had or would have a Material Adverse Effect or any event or development that could, individually or in on the aggregate, reasonably be expected to result in a Company Material Adverse EffectCompany. (d) The Company shall have delivered to furnished Parent with a certificate, certificate dated the Closing Date and signed on its behalf by its the Chief Executive Financial Officer or another senior officer, certifying of the Company to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment ofsatisfaction, or the waiver by Parent on or prior to the Effective Time ofParent, of the following conditions: (a) The (i) Other than with respect to Sections 3.2(a), 3.2(b), 3.11(b), 3.24 and 3.26, the representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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, (iiiwithout giving effect to any exceptions or qualification contained therein relating to “materiality” or “Company Material Adverse Effect”) Section 3.2 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 for de minimis inaccuraciessuch failures to be true and correct as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and (ivii) Section 3.3(dthe representations and warranties of the Company set forth in Sections 3.2(a), Section 3.10(b) 3.2(b), 3.24 and Section 3.21 3.26 shall be true and correct both 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 DateDate (subject, in the case of each of the representations and warranties of the Company set forth in Sections 3.2(a), 3.2(b), 3.24 and 3.26, to such inaccuracies as do not individually or in the aggregate exceed $1,500,000 in value); and (iii) the representations and warranties of the Company set forth in Section 3.11(b), shall be true and correct in all respects at and as of the date of this Agreement provided, however, that that, with respect to clauses (i), (ii) and (iii) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and or (iii), as applicable) only as of such date or period. (b) The Company shall have in all material respects performed all obligations and complied with all covenants the agreements required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this Agreement, Agreement there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied. (e) Prior to the Effective Time a minimum of 8,003,842 Rollover Shares shall have been contributed to Parent or an affiliate thereof pursuant to Rollover Agreements and Vardon shall have performed its obligations pursuant to the Investment Agreement by making an investment in Parent or an affiliate thereof that corresponds to the value of 3,449,055 Shares (as determined pursuant to the Investment Agreement).

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.24.1, Section 3.3(a)-(d4.2, Section 4.3, Section 4.10(b), Section 3.10(b) 4.17 and Section 3.21) 4.18 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such except for representations and warrantieswarranties that expressly speak only as of a specific date or time other than the Closing Date, which need only be true and correct as of such other date or time), except where such failures for de minimis inaccuracies with respect to be so true the representations and correct would not, warranties in the aggregate, reasonably be expected to have a Company Material Adverse EffectSection 4.2 and Section 4.3, (ii) the representations and warranties of the Company set forth in Article IV other than those referenced in clause (i) of this Section 3.3(a)-(c7.3(a) shall be true and correct in all material respects (disregarding any qualifications with respect to materiality or “Company Material Adverse Effect” contained therein) 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 for representations and warranties that expressly speak only as of a specific date or time other than the Closing Date, (iii) Section 3.2 shall which need only be true and correct at and as of such other date or time), except, in the date case of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and clause (iv) Section 3.3(dii), Section 3.10(b) where the failure of such representations and Section 3.21 shall warranties to be so true and correct both at has not had 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; providedwould not reasonably be expected to have, however, that representations and warranties that are made as of a particular date individually or period shall be true and correct (in the manner set forth in clauses (i)aggregate, (ii) and (iii), as applicable) only as of such date or perioda Company Material Adverse Effect. (b) The Company shall 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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect event, change, effect, development, condition, state of facts or any event or development that couldoccurrence that, individually or in the aggregate, has had or would be reasonably be expected to result in have a Company Material Adverse Effect. (d) No more than five percent (5%) of the total issued and outstanding shares of Company Common Stock and Company Preferred Stock, in the aggregate, shall have delivered to the Company a demand for appraisal of such shares pursuant to Section 262 of the DGCL. (e) The Company shall have caused Xxxxxxx Xxxxx to have executed and delivered the employment agreement with the Parent in the form attached hereto as Exhibit D. (f) The Parent shall have received from US Bank, National Association: (i) if required, written consent to the transactions contemplated by this Agreement; and (ii) a written commitment to provide the Parent and the Surviving Corporation with additional financing, on terms that are reasonably satisfactory to Parent, in an amount sufficient to satisfy all debts, obligations and liabilities of the Company pursuant to the Company’s existing financing arrangements with Colorado Business Bank West, and to financing the Surviving Corporation’s working capital and operating requirements following Closing. (g) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officeran executive officer of the Company, certifying to the effect that the conditions set forth in Section 6.3(aSections 7.3(a), Section 6.3(b7.3(b) and Section 6.3(c7.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement Article III (other than in Section 3.1 (first and second sentences only), 3.2, Section 3.3(a)-(d3.3(a), Section 3.3(c)(ii), 3.10(b) ), 3.24 and Section 3.213.25) 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 Date, except where such failures to be so true and correct (without regard to “materiality”, Company ,” Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct ) would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect on the Company, (ii) Sections 3.1 (first and second sentences only), Section 3.3(a)-(c3.2(b) (last sentence only), 3.2(d), 3.3(a), 3.3(c)(ii), 3.24 and 3.25 shall be true and correct (without regard to “materiality,” Material Adverse Effect and similar qualifiers contained in such representations and warranties) 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 3.2(a), 3.2(b) (first sentence only) and 3.2(c) shall be true and correct in all respects, other than de minimis inaccuracies, 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 for de minimis inaccuracies, Date and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii) and (iiiiv), as applicable) only as of such date or period. (b) The Company shall have performed and complied in all material respects performed all obligations and complied with all covenants covenants, obligations or other agreements required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred been any Company Material Adverse Effect or any event fact, change, circumstance, event, occurrence, condition or development that couldthat, individually or in the aggregate, has had or would reasonably be expected to result in have a Company Material Adverse EffectEffect on the Company. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, (or the written waiver by Parent on or prior to the Effective Time of, and Merger Sub) of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) which are qualified by a “Company Material Adverse Effect” qualification shall be true and correct both 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 and (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such ii) the representations and warranties), except where such failures to be so true and correct would not, warranties of the Company set forth in the aggregate, reasonably be expected to have this Agreement which are not qualified by a “Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 ” qualification 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 shall such failures to be true and correct both at and as of would not, in the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Dateaggregate, reasonably be expected to have 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 particular date or period shall be true and correct (in the manner set forth in clauses (i), ) or (ii) and (iii), as applicable) ), only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect provided further that the conditions representations and warranties of the Company set forth in Section 6.3(a3.2(a), (b), and (e) (in each case to the extent relating to capital stock of the Company) shall be true and correct in all respects as of the particular date of which they were made, and the representations and warranties of the Company set forth in the third sentence of Section 3.3(a), Section 6.3(b) 3.8, Section 3.9, the second sentence of Section 3.11, and Section 6.3(c) have been satisfied.Section

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (ai) The representations and warranties of the Company AgEagle set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse EffectDate, (ii) the representations and warranties of AgEagle set forth in Section 3.3(a)-(c3.2(a) 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 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 for any de minimis inaccuracies, and (iviii) Section 3.3(d), Section 3.10(b) the other representations and Section 3.21 warranties of AgEagle set forth in this Agreement 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 would not, individually or in the aggregate, have a Material Adverse Effect; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) The Company AgEagle 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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company AgEagle shall have delivered to Parent (i) a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officerofficer of AgEagle, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied, (ii) Articles of Merger to be filed in accordance with the NRS as of the Effective Time; (iii) a certificate of good standing or equivalent under NV law, and (iv) such other documents as Parent may reasonably request for the purpose of facilitating the consummation of any of the transactions contemplated by this Agreement. (d) AgEagle shall have issued to the Debenture Holders 693,333 shares of AgEagle Common Stock in complete satisfaction of all amounts due to the Debenture Holders under the Convertible Debenture (with such final amount to be determined by AgEagle and the Debenture Holders at the date of such issuance and satisfaction), which the Convertible Debentures shall have been discharged in full, and the Debenture Holders shall execute and deliver to Parent a certificate confirming that the Convertible Debentures have been discharged in full. (e) Since the date of this Agreement, there must not have been commenced or threatened against AgEagle, or against any affiliate thereof, any proceeding (which proceeding remains unresolved as of the Effective Time) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Transactions contemplated hereby. (f) There shall not have occurred any Material Adverse Effect on AgEagle or any change that has a Material Adverse Effect AgEagle.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) which are qualified by a “Company Material Adverse Effect” qualification shall be true and correct both 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such ii) the representations and warranties), except where such failures to be so true and correct would not, warranties of the Company set forth in the aggregate, reasonably be expected to have this Agreement which are not qualified by a “Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 ” qualification 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 for de minimis inaccuraciessuch failures to be true and correct as would not have, in the aggregate, a Company Material Adverse Effect (except that the representations and (iv) warranties contained in the second sentence of Section 3.3(d), Section 3.10(b3.2(a) and the first sentence of Section 3.21 3.2(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 Datein all material respects); provided, however, that that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), ) or (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Parent shall have received from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to Parent, a written opinion dated the Closing Date to the effect that for U.S. federal income tax purposes the Merger will constitute a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to Parent shall be entitled to rely upon customary assumptions and representations, including those contained in the Tax Representation Letters described in Section 5.14 of this Agreement.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, the following conditions: (ai) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.24.1, Section 3.3(a)-(d4.2, Section 4.3, Section 4.10(b), Section 3.10(b) 4.17 and Section 3.21) 4.18 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such except for representations and warrantieswarranties that expressly speak only as of a specific date or time other than the Closing Date, which need only be true and correct as of such other date or time), except where such failures for de minimis inaccuracies with respect to be so true the representations and correct would not, warranties in the aggregate, reasonably be expected to have a Company Material Adverse EffectSection 4.2 and Section 4.3, (ii) the representations and warranties of the Company set forth in Article IV other than those referenced in clause (i) of this Section 3.3(a)-(c7.3(a) shall be true and correct in all material respects (disregarding any qualifications with respect to materiality or “Company Material Adverse Effect” contained therein) 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 for representations and warranties that expressly speak only as of a specific date or time other than the Closing Date, (iii) Section 3.2 shall which need only be true and correct at and as of such other date or time), except, in the date case of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and clause (iv) Section 3.3(dii), Section 3.10(b) where the failure of such representations and Section 3.21 shall warranties to be so true and correct both at has not had 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; providedwould not reasonably be expected to have, however, that representations and warranties that are made as of a particular date individually or period shall be true and correct (in the manner set forth in clauses (i)aggregate, (ii) and (iii), as applicable) only as of such date or perioda Company Material Adverse Effect. (b) The Company shall 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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect event, change, effect, development, condition, state of facts or any event or development that couldoccurrence that, individually or in the aggregate, has had or would be reasonably be expected to result in have a Company Material Adverse Effect. (d) No more than five percent (5%) of the total issued and outstanding shares of Company Common Stock and Company Preferred Stock, in the aggregate, shall have delivered to the Company a demand for appraisal of such shares pursuant to Section 262 of the DGCL. (e) The Company shall have caused Sxxxxxx Axxxx to have executed and delivered the employment agreement with the Parent in the form attached hereto as Exhibit D. (f) The Parent shall have received from US Bank, National Association: (i) if required, written consent to the transactions contemplated by this Agreement; and (ii) a written commitment to provide the Parent and the Surviving Corporation with additional financing, on terms that are reasonably satisfactory to Parent, in an amount sufficient to satisfy all debts, obligations and liabilities of the Company pursuant to the Company’s existing financing arrangements with Colorado Business Bank West, and to financing the Surviving Corporation’s working capital and operating requirements following Closing. (g) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officeran executive officer of the Company, certifying to the effect that the conditions set forth in Section 6.3(aSections 7.3(a), Section 6.3(b7.3(b) and Section 6.3(c7.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, (or the written waiver by Parent on or prior to the Effective Time of, and Merger Sub) of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) that are qualified by a “Company Material Adverse Effect” qualification shall be true and correct both 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such ii) the representations and warranties), except where such failures to be so true and correct would not, warranties of the Company set forth in the aggregate, reasonably be expected to have this Agreement that are not qualified by a “Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 ” qualification 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 shall such failures to be true and correct both at and as of would not, in the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Dateaggregate, reasonably be expected to have 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 particular date or period shall be true and correct (in the manner set forth in clauses (i), ) or (ii) and (iii), as applicable) ), only as of such date or period.; and provided further that the representations and warranties of the Company set forth in Section 3.2(a) and (b) (in each case to the extent relating to capital stock of the Company) (other than de minimis exceptions) 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 (other than such specified representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct except for de minimis exceptions to the extent applicable as of such other 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 prior to the Effective Time.; and (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect consummate the Merger is shall be further subject to the fulfillment of, satisfaction (or the waiver by Parent on Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement ARTICLE III (other than Section 3.23.1, Section 3.3(a)-(d3.3, Section 3.4(a), Section 3.10(b) 3.5(a), Section 3.6, Section 3.14 and Section 3.213.23) shall be true and correct both (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 Closing Date as though made at and as of such times, except for such failures to be true and correct as would not reasonably be expected to have, in the Closing Date aggregate, a Material Adverse Effect on the Company, (ii) the representations and warranties set forth in Section 3.4(a) shall be true and correct (without regard to “materiality”, Company ,” Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 Datesuch times, except for any de minimis inaccuracies or issuances permitted pursuant to this Agreement (iii) the representations and warranties set forth in Section 3.2 3.1, Section 3.3, Section 3.5(a), Section 3.14 and Section 3.23 shall be true and correct (without regard to “materiality,” Material Adverse Effect 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 Closing Date as though made at and as of the Closing Datesuch times, except for de minimis inaccuracies, other than with respect to any issuances permitted pursuant to this Agreement and (iv) the representation set forth in Section 3.3(d), Section 3.10(b) and Section 3.21 3.6 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 if made at and as of the Closing Datesuch time; provided, however, that with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses clause (i), (ii) and ), (iii)) or (iv) above, as applicable) only as of such date or period; provided further, however, that with respect to clauses (i), (iii) and (iv) above, such conditions shall not apply to any failure to be true and correct arising from or relating to the Company (A) failing to receive any waivers, consents, licenses, permits, authorizations, orders or approvals under any Antitrust Law or (B) being subject to any Action (or threatened Action) challenging any transaction contemplated by this Agreement as violative of any Antitrust Law (each of the foregoing in subclauses (A) and (B) above, an “Excluded Company Event”). (b) The Company shall have performed in all material respects performed all the obligations and complied with all covenants required by agreements in this Agreement (other than the obligations set forth in Section 5.12(a) and Section 5.12(b)) and shall have complied in all material respects with the covenants to be performed or and complied with by it under this Agreement (other than the covenants set forth in Section 5.12(a) and Section 5.12(b)) at or prior to the Effective TimeClosing. The Company shall have performed in all respects the obligations and agreements set forth in Section 5.12(a) and Section 5.12(b) and shall have complied in all respects with the covenants to be performed and complied with by it under Section 5.12(a) and Section 5.12(b) at or prior to the Closing. (c) Since the date of this Agreement, there shall not have occurred any Events (other than Excluded Company Material Adverse Effect or any event or development that couldEvents) that, individually or in the aggregate, have had or would reasonably be expected to result in have a Company Material Adverse EffectEffect on the Company. (d) The Company shall have delivered to furnished Parent with a certificate, certificate dated the Closing Date and signed on its behalf by its the Chief Executive Officer or another senior officer, certifying and the Chief Financial Officer of the Company to the effect that the conditions set forth in Sections Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company BRE set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse EffectDate, (ii) the representations and warranties of BRE set forth in Section 3.3(a)-(c3.2(a) 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 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 for any de minimis inaccuracies, and (iviii) Section 3.3(d), Section 3.10(b) the other representations and Section 3.21 warranties of BRE set forth in this Agreement 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 would not, individually or in the aggregate, have a Material Adverse Effect; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) The Company BRE 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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company BRE shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officerofficer of BRE, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) BRE shall have issued to WCOF approximately, and in any case no more than, 107,305,678 shares of BRE Common Stock in complete satisfaction of all amounts due to WCOF under the WCOF-BRE Debenture (with such final amount to be determined by BRE and WCOF at the date of such issuance and satisfaction), which WCOF-BRE Debenture shall have been discharged in full, and WCOF shall execute and deliver to Parent a certificate confirming that such WCOF-BRE Debenture has been discharged in full. (e) BRE's auditors shall have delivered to Parent (i) audited financial statements for BRE for the 12-month periods ended December 31, 2011, and December 31, 2012, in form and substance acceptable to Parent, and (ii) a report of agreed procedures acceptable to Parent with respect to the six-month period ended June 30, 2013, in form and substance acceptable to Parent. (f) Notwithstanding anything to the contrary in this Agreement, the Carlyle Note Payoff Amount shall not exceed $16,343,910 reduced by the balance in the Capital Reserve Account as of September 30, 2013.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of(or waiver in writing by Parent, or to the waiver by Parent on extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in in: (i) this Section 3.10(c) (Absence of Certain Changes or Events) of the Agreement shall be true and correct in all respects as of the date specified therein; (other than ii) Section 3.2, Section 3.3(a)-(d), Section 3.10(b3.2(a) and Section 3.213.2(b) (Capital Stock and Indebtedness) shall be true and correct both in all respects at and as of the date of this Agreement hereof and at and the Effective Time as of the Closing Date as though if made at and as of the Closing Date (without regard date hereof and the Effective Time, respectively, except, in each case, to “materiality”, Company Material Adverse Effect and similar qualifiers contained in the extent such representations and warranties)warranties speak as of a specified date or time, except where in which case they need only be true and correct as of such specified date or time and except, in each case, for such failures to be so true and correct would notthat, individually or in the aggregate, would not reasonably be expected to have cause more than a Company de minimis increase in the aggregate amounts payable by Merger Sub or Parent in the transactions contemplated hereby; (iii) Section 3.1(a) (Organization), Section 3.2(c), Section 3.2(d) and Section 3.2(e) (Capital Stock and Indebtedness), Section 3.3(a) (Corporate Authority Relative to this Agreement), Section 3.19 (Opinion), and Section 3.20 (Finders or Brokers) (collectively, the “Fundamental Representations”) to the extent qualified by materiality, “Material Adverse Effect” or other qualifications based on the word “material” or similar phrases therein (but not dollar thresholds) shall be true and correct in all respects at and as of the date hereof and the Effective Time as if made at and as of the date hereof and the Effective Time, respectively, except, in each case, for representations and warranties in the Fundamental Representations that relate to a specific date or time (ii) Section 3.3(a)-(cwhich need only be true and correct as of such date or time), and all of the Fundamental Representations to the extent not qualified by materiality, “Material Adverse Effect” or other qualifications based on the word “material” or similar phrases therein (but not dollar thresholds) shall be true and correct in all material respects both at and as of the date of this Agreement hereof and at and the Effective Time as of the Closing Date as though if made at and as of the Closing Datedate hereof and the Effective Time, respectively, except, in each case, for representations and warranties in the Fundamental Representations that relate to a specific date or time (iiiwhich need only be true and correct in all material respects as of such date or time); and (iv) Article III (other than in Section 3.2 3.2(a), Section 3.2(b) and Section 3.10(c) and the Fundamental Representations) (without giving effect to any materiality, “Material Adverse Effect” or other qualifications based on the word “material” or similar phrases therein (but not dollar thresholds)), shall be true and correct at and as of the date of this Agreement hereof and at and the Effective Time as of the Closing Date as though if made at and as of the Closing Datedate hereof and the Effective Time, except respectively, except, in each case, (x) for de minimis inaccuracies, such representations and warranties that relate to a specific date or time (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 shall which need only 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or periodtime) and (y) for such failures to be true and correct, individually or in the aggregate, as have not had or would not reasonably be likely to have a Material Adverse Effect. (b) The Company shall have performed and complied in all material respects performed all obligations and complied with all each of its covenants required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this Agreementhereof, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company Parent shall have delivered to Parent received a certificate, dated certificate of the Closing Date and signed by its Chief Executive Officer or another other senior officerexecutive officer of the Company, dated as of the Closing Date, certifying to for and on behalf of the effect Company that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied. (e) The Company shall have delivered to Parent payoff letters in form and substance reasonably satisfactory to Parent (such payoff letters, the “Payoff Letters”) duly executed by the applicable agent(s) to the Credit Facilities pursuant to which such agent(s) shall agree that upon payment of the Payoff Amount specified in such Payoff Letters: (i) all obligations of each credit party arising under or related to the Credit Facilities shall be paid in full; (ii) all Liens in connection therewith shall be released; and (iii) all pledged collateral securing the outstanding obligations under the Credit Facilities shall be returned.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on 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 Section 3.2, Section 3.3(a)-(d), Section 3.10(b) Sections 3.1 and Section 3.21) 3.2 shall be true and correct both at and in all respects as of the date of this Agreement and at and as of the Closing Date Date, as though if made at and as of such date (except to the Closing Date (without regard to “materiality”extent expressly made as of an earlier date, Company Material Adverse Effect and similar qualifiers contained in which case as of such representations and warrantiesdate), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(cthis Agreement (other than the representations and warranties in Sections 3.1 and 3.2) 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 shall be true and correct at and as if made as of such date (except to the date extent expressly made as of an earlier date, in which case as of such date), except (in the case of this Agreement and at and as clause (B)) where the failure of the Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that such representations and warranties that are made as of a particular date or period shall to be so true and correct (in the manner without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in clauses (i)any individual such representation or warranty) would not reasonably be expected to have, (ii) and (iii)individually or in the aggregate, as applicable) only as of such date or perioda Company Material Adverse Effect. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) The Company shall have delivered to Parent the Payoff Letter in accordance with Section 5.17.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on 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 Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d) and (e), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on 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 Section 3.2, Section 3.3(a)-(d3.3(a)-(f), Section 3.10(b) and Section 3.21) 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section Sections 3.3(a)-(c) and 3.3(e) 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 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 for de minimis inaccuracies, and (iv) Section 3.3(d) and (f), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (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 prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that couldwould, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, (or the waiver by Parent on Parent) at or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement Article III (other than in Section 3.1 (first and second sentences only), 3.2, Section 3.3(a)-(d3.3(a), Section 3.3(c)(ii), 3.10(b) ), 3.24 and Section 3.213.25) 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 Date, except where such failures to be so true and correct (without regard to “"materiality”, Company ," Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct ) would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect on the Company, (ii) Sections 3.1 (first and second sentences only), Section 3.3(a)-(c3.2(b) (last sentence only), 3.2(d), 3.3(a), 3.3(c)(ii), 3.24 and 3.25 shall be true and correct (without regard to "materiality," Material Adverse Effect and similar qualifiers contained in such representations and warranties) 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 3.2(a), 3.2(b) (first sentence only) and 3.2(c) shall be true and correct in all respects, other than de minimis inaccuracies, 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 for de minimis inaccuracies, Date and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii) and (iiiiv), as applicable) only as of such date or period. (b) The Company shall have performed and complied in all material respects performed all obligations and complied with all covenants covenants, obligations or other agreements required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred been any Company Material Adverse Effect or any event fact, change, circumstance, event, occurrence, condition or development that couldthat, individually or in the aggregate, has had or would reasonably be expected to result in have a Company Material Adverse EffectEffect on the Company. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect consummate the Merger is shall be further subject to the fulfillment of, satisfaction (or the waiver by Parent on Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement Article III (other than Section 3.1, Section 3.2, Section 3.3(a)-(d3.3, Section 3.4(a), Section 3.10(b) 3.5(a), Section 3.6(a), Section 3.15 and Section 3.213.22) shall be true and correct both (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 Closing Date as though made at and as of such times, except for such failures to be true and correct as would not have, in the Closing Date aggregate, a Material Adverse Effect on the Company, (ii) the representations and warranties set forth in Section 3.4(a) shall be true and correct (without regard to “materiality”, Company ” Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures for any de minimis inaccuracies and other than with respect to be so true and correct would not, in the aggregate, reasonably be expected any issuances permitted pursuant to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) shall be true and correct in all material respects both this Agreement 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 Datesuch times, (iii) the representations and warranties set forth in Section 3.2 3.1, Section 3.2, Section 3.3, Section 3.5(a), Section 3.15 and Section 3.22 shall be true and correct (without regard to “materiality,” Material Adverse Effect 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 Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, such times and (iv) the representation set forth in Section 3.3(d), Section 3.10(b3.6(a) and Section 3.21 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 if made at and as of the Closing Datesuch time; provided, however, that with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses clause (i), (ii) and ), (iii)) or (iv) above, as applicable) only as of such date or period. (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 TimeClosing. (c) Since the date of this Agreement, there shall not have occurred any Company Events that have had or would have a Material Adverse Effect or any event or development that could, individually or in on the aggregate, reasonably be expected to result in a Company Material Adverse EffectCompany. (d) The Company shall have delivered to furnished Parent with a certificate, certificate dated the Closing Date and signed on its behalf by its the Chief Executive Financial Officer or another senior officer, certifying of the Company to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied. (e) 60 days shall have elapsed following the date of the FDA’s receipt of the BromSite NDA for review and the FDA shall not have issued any written communication to the Company refusing to file the BromSite NDA for review (a “BromSite Refusal Letter”). (f) 74 days shall have elapsed following the date of the FDA’s receipt of the BromSite NDA for review and the FDA shall not have issued any written communication to the Company that asserts a deficiency that is reasonably likely to require one or more additional clinical studies with respect to BromSite™ to be conducted prior to initiating the marketing and sale of BromSite™ in the United States for the treatment of postoperative inflammation and prevention of ocular pain in patients undergoing cataract surgery (a “BromSite Issue Letter”).

Conditions to Obligation of Parent to Effect the Merger. The obligation obligations of Parent and Merger Sub to effect consummate the Merger is shall be further subject to the fulfillment of, satisfaction (or the waiver by Parent on Parent, to the extent permissible under applicable Law) at or prior to the Effective Time of, of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement Article III (other than Section 3.1, Section 3.2, Section 3.3(a)-(d3.3, Section 3.4(a), Section 3.10(b) 3.5(a), Section 3.6(a), Section 3.15 and Section 3.213.22) shall be true and correct both (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 Closing Date as though made at and as of such times, except for such failures to be true and correct as would not have, in the Closing Date aggregate, a Material Adverse Effect on the Company, (ii) the representations and warranties set forth in Section 3.4(a) shall be true and correct (without regard to “"materiality”, Company " Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures for any de minimis inaccuracies and other than with respect to be so true and correct would not, in the aggregate, reasonably be expected any issuances permitted pursuant to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) shall be true and correct in all material respects both this Agreement 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 Datesuch times, (iii) the representations and warranties set forth in Section 3.2 3.1, Section 3.2, Section 3.3, Section 3.5(a), Section 3.15 and Section 3.22 shall be true and correct (without regard to "materiality," Material Adverse Effect 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 Closing Date as though made at and as of the Closing Date, except for de minimis inaccuracies, such times and (iv) the representation set forth in Section 3.3(d), Section 3.10(b3.6(a) and Section 3.21 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 if made at and as of the Closing Datesuch time; provided, however, that with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses clause (i), (ii) and ), (iii)) or (iv) above, as applicable) only as of such date or period. (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 TimeClosing. (c) Since the date of this Agreement, there shall not have occurred any Company Events that have had or would have a Material Adverse Effect or any event or development that could, individually or in on the aggregate, reasonably be expected to result in a Company Material Adverse EffectCompany. (d) The Company shall have delivered to furnished Parent with a certificate, certificate dated the Closing Date and signed on its behalf by its the Chief Executive Financial Officer or another senior officer, certifying of the Company to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) 3.02 and Section 3.21) 3.22 shall be true and correct both at and in all respects (other than de minimis exceptions) as of the date of this Agreement and at as of the Effective Time with the same force and effect as though made on and as of the Closing Date as though made at and as of the Closing Date (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffective Time, (ii) the representations and warranties of the Company set forth in Section 3.3(a)-(c) 3.01 and Section 3.04 of this Agreement shall be true and correct in all material respects both at and as of the date of this Agreement and at as of the Effective Time with the same force and effect as though made on and as of the Closing Date as though made at Effective Time (except to the extent that such representations and warranties expressly speak as of the Closing Datean earlier date, (iii) Section 3.2 in which case such representation and warranty shall be true and correct at in all material respects as of such earlier date), and (iii) the other representations and warranties of the Company contained in this Agreement or in any certificate or other writing delivered by the Company pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, shall be true and correct as of the date of this Agreement and at as of the Effective Time with the same effect as though made on and as of the Closing Date as though made at Effective Time (except to the extent that such representation and warranty expressly speaks as of the Closing Datean earlier date, except for de minimis inaccuracies, in which case such representation and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 warranty shall be true and correct both at and as of such earlier date), except, in the date case of this Agreement and at and as of clause (iii) only, where 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 particular date or period shall failure to be true and correct (would not have, and would not reasonably be expected to have, individually or in the manner set forth in clauses (i)aggregate, (ii) and (iii), as applicable) only as of such date or perioda Company Material Adverse Effect. (b) The Company shall have performed in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Effective TimeClosing Date. (c) Since the date of this Agreement, there There shall not have occurred and be continuing any Company Material Adverse Effect or any event event, occurrence, revelation or development that couldof a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to result in have a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officeran executive officer of the Company, certifying to the effect that the conditions set forth in Section 6.3(aSections 6.03(a), Section 6.3(b6.03(b) and Section 6.3(c6.03(c) have been satisfied. (e) The Company shall have terminated each of the Contracts listed on Section 6.03(f) of the Company Disclosure Schedule. (f) The Company shall have delivered an executed affidavit, dated not more than thirty (30) days prior to the Closing Date, in accordance with Code Section 1445(b)(3) and Treasury Regulations Section 1.1445-2 and in form and substance reasonably satisfactory to Parent, which statement certifies that the Company is not a United States real property holding corporation. (g) No more than five percent (5%) of issued and outstanding shares of Company Common Stock and Restricted Stock, in the aggregate, shall be Dissenting Shares. (h) The Company shall have delivered a certified Company Certificate of Incorporation as of a recent date by the Secretary of State of the State of Delaware. (i) The Company shall have delivered a certificate issued by the Secretary of State of the State of Delaware certifying that the Company has legal existence and is in good standing. (j) The Company Notes shall have been converted to Company Common Stock.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, or the waiver by Parent the Company on or prior to the Effective Time of, the following conditions: (a) The representations and warranties of the Company set forth in herein (i) this Agreement (other than with respect to Section 3.2, Section 3.3(a)-(d3.2(a), Section 3.10(b) 3.3(a), Section 3.17 and Section 3.21) 3.18 shall be true and correct both at when made 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 (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such representations and warranties), except where such failures to be so true and correct would not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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, as if made at and as of such time (iiiexcept to the extent expressly made as of an earlier date, in which case as of such date), in all respects (except in the case of Section 3.2(a) Section 3.2 for such inaccuracies as are de minimis in the aggregate) and (ii) with respect to all other representations and warranties shall be true and correct at both when made 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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 if made at and as of such time (except to the Closing Date; providedextent expressly made as of an earlier date, howeverin which case as of such date), that except in the case of clause (ii) where the failure of such representations and warranties that are made as of a particular date or period shall to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) does not have, and would not reasonably be expected to have, individually or in the manner set forth in clauses (i)aggregate, (ii) and (iii), as applicable) only as of such date or perioda Company Material Adverse Effect. (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 prior to the Effective Time. (c) Since the date of this Agreement, there There shall not have occurred any Company Material Adverse Effect event, change, effect, development, state of facts, circumstance, condition or any event occurrence that has had or development that couldwould reasonably be expected to have, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officerChief Financial Officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied. (e) Parent shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, a written tax opinion, in form and substance reasonably satisfactory to the Company, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code (the “Parent Tax Opinion”); it being understood that in rendering such opinion, Akin Gump Xxxxxxx Xxxxx & Xxxx LLP shall be entitled to rely upon customary representations provided by the relevant parties. (f) Parent shall have received a copy of the Company Tax Opinion. (g) (i) the Company Approvals and the Parent Approvals shall have been obtained (including, in each case, the expiration or termination of the waiting periods (and any extensions thereof) under the HSR Act applicable to the Merger and the Transactions) at or prior to the Effective Time, and such approvals shall have become Final Orders, and (ii) such Final Orders of the FERC, the FTC or the DOJ shall not impose terms or conditions that (a) individually or in the aggregate, would reasonably be expected to have a Parent Material Adverse Effect (without giving effect to the Merger) or (b) individually or in the aggregate (giving effect to any such actions required by the Applicable PSCs) would reasonably be expected to have a Parent Material Adverse Effect (determined after giving effect to the Merger), and such Final Orders of the Applicable PSCs shall not impose terms or conditions that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect (provided that for these purposes Parent and its Subsidiaries, taken as a whole, shall be deemed to be a consolidated group of entities of the size and scale of the Company and its Subsidiaries, taken as a whole). (h) The Company shall have received, in a form reasonably acceptable to Parent, fully executed consents, waivers or other approvals from sufficient lenders under each of the Company’s credit facilities listed in Section 3.3(c).1 of the Company Disclosure Schedule, such that the Transactions will not cause, and will not have the effect of causing, any change of control, put, call, acceleration, default, event of default, termination event or other similar consequence under any such facility, or in the absence of receiving such consents, waivers or other approvals, the Company or its Subsidiaries shall have terminated and replaced the applicable credit facility or facilities with new credit facilities providing an aggregate amount of available liquidity to the Company and its Subsidiaries, taken as a whole, comparable to the credit facilities that were terminated and on terms and conditions not materially less favorable to the Company and its Subsidiaries, taken as a whole, as the terminated facilities.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent to effect the Merger is further subject to the fulfillment of, or the waiver by Parent on or prior to the Effective Time of, of the following conditions: (a) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) shall be true and correct (disregarding any limitation as to “materiality,” “Company Material Adverse Effect” or similar qualifiers set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date with the same force and effect as though if made at and as of on the Closing Date (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such except that those representations and warrantieswarranties that are made as of a particular date or period must be true and correct only as of such date or period), except where the failure of such failures representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, (iihowever, that the representations and warranties of the Company contained in Sections 3.2(a) Section 3.3(a)-(cand 3.3(a) 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 with the same force and effect as though if made at and as of on the Closing Date, (iii) Section 3.2 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii) and (iii), as applicable) only as of such date or period. (b) The Company shall have in all material respects performed all obligations and complied with all the covenants and agreements required by this Agreement to be performed or complied with by it prior to the Effective Time. (c) Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section Sections 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied. (d) Since the date of this Agreement, there shall not have occurred any fact, circumstance, event, change, effect, development or occurrence which, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect.

Conditions to Obligation of Parent to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment of, (or the written waiver by Parent on or prior to the Effective Time of, and Merger Sub) of the following conditions: (a) (i) The representations and warranties of the Company set forth in (i) this Agreement (other than Section 3.2, Section 3.3(a)-(d), Section 3.10(b) and Section 3.21) which are qualified by a “Company Material Adverse Effect” qualification shall be true and correct both 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 and (without regard to “materiality”, Company Material Adverse Effect and similar qualifiers contained in such ii) the representations and warranties), except where such failures to be so true and correct would not, warranties of the Company set forth in the aggregate, reasonably be expected to have this Agreement which are not qualified by a “Company Material Adverse Effect, (ii) Section 3.3(a)-(c) 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 ” qualification 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 for de minimis inaccuracies, and (iv) Section 3.3(d), Section 3.10(b) and Section 3.21 shall such failures to be true and correct both at and as of would not, in the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Dateaggregate, reasonably be expected to have 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 particular date or period shall be true and correct (in the manner set forth in clauses (i), ) or (ii) and (iii), as applicable) ), only as of such date or period.; and provided further that the representations and warranties of the Company set forth in Section 3.2(a), (b), and (e) (in each case to the extent relating to capital stock of the Company) shall be true and correct in all respects as of the particular date of which they were made, and the representations and warranties of the Company set forth in the third sentence of Section 3.3(a), Section 3.8, Section 3.9, the second sentence of Section 3.11, and Section 3.14 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; (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 prior to the Effective Time.; (c) Since the date of this Agreement, there No event or change shall not have occurred any Company Material Adverse Effect that has or any event or development that could, individually or in the aggregate, would reasonably be expected to result in have a Company Material Adverse Effect.; (d) The Company shall have delivered to Parent a certificate, dated the Closing Date Effective Time and signed by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c6.3(b) have been satisfied.; (e) As of the Closing Date, the Total Merger Consideration shall be a positive number; (f) Each of the officers and directors of the Company as of the date hereof and the Effective Time shall have executed and delivered to Parent a release in the forms attached hereto as Exhibit A; (g) Except as disclosed in the survey dated March 15, 2000 performed by K&D Engineering, all buildings and other structures, facilities or improvements, fixtures, and affixed equipment of the Company related to the operation of the business of the Company on the Owned Real Property shall be located on real property owned by the Company or on a perpetual easement (for which all financial consideration has been fully prepaid) appurtenant to real property owned by the Company; and