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

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment or waiver at or prior to the Effective Time of each of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained in Section 4.2(a) (Corporate Authority) shall be true and correct in all respects, at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations or warranties to be so true and correct would not have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (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), as applicable) only as of such date or period. (b) Parent shall have (i) 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 (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated Notes. (c) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial Officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver at by the Company on or prior to the Effective Time of each of of, the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained set forth in (i) this Agreement (other than Section 4.2(a) (Corporate Authority4.2) 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”, Parent 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 Parent Material Adverse Effect, and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) Section 4.2 shall be true and correct in all material respects (disregarding any materiality or Parent Material Adverse Effect qualifiers 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 where the failure of such representations or warranties to be so true and correct would not have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (ii) hereof, 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) or (ii), as applicable) only as of such date or period. (b) Parent shall have (i) 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 (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesTime. (c) Parent shall have delivered to the Company a certificate, dated the Effective Time Closing Date and signed by its the Chief Financial OfficerExecutive Officer or another senior officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment (or written waiver at or prior to by the Effective Time of each Company) of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained set forth in Section 4.2(a) (Corporate Authority) shall this Agreement which are qualified by a “Parent Material Adverse Effect” qualification will be true and correct in all respects, respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) shall which are not qualified by a “Parent Material Adverse Effect” qualification will be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations or warranties to be so true and correct would not have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or and (ii) hereof, representations and warranties that are made as of a particular date or period shall will be true and correct (in the manner set forth in clauses (i) or (ii), as applicable) only as of such date or period. (b) Parent shall and Merger Sub will have (i) 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 and (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesTime. (c) Parent shall will have delivered to the Company a certificate, dated as of the Effective Time Closing Date and signed by its Chief Financial OfficerExecutive Officer or another senior officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied. (d) Parent will have deposited, or will have cause to be deposited, the amounts contemplated by Section 2.2(a) with the Exchange Agent.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further shall be subject to the fulfillment satisfaction or waiver by the Company in writing at or prior to the Effective Time of each of the following additional conditions: (a) The representations and warranties of Parent and Merger Sub in Section 6.1, Section 6.2 and Section 6.11 that (i) are not made as of a specific date shall be true and correct as of the date of this Agreement and as of the Closing, as though made on and as of the Closing, and (ii) are made as of a specific date shall be true and correct as of such date. The representations and warranties of Parent and Merger Sub contained in this Agreement (other than those in Section 4.2(a6.1, Section 6.2 and Section 6.11) that (Corporate Authorityi) are not made as of a specific date shall be true and correct in all respects, at and as of the date of this Agreement and at as of the Closing, as though made on and as of the Closing Date as though made at and as of the Closing Date Closing, and (ii) the representations and warranties are made as of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) a specific date shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) 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 date, in each case, except where the failure of such representations or and warranties to be so true and correct would not have(without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth in such representations and warranties), individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (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), as applicable) only as of such date or period.; (b) Each of Parent and Merger Sub shall have (i) performed or complied with, in all material respects performed all obligations respects, each of its obligations, agreements and complied with all covenants required by under this Agreement to be performed or complied with by it on or prior to the Effective Time and (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated Notes.Time; and (c) Parent shall have delivered to the Company a certificate, dated as of the Effective Time and Closing Date, signed by its Chief Financial Officer, an officer of Parent and certifying as to the effect that satisfaction of the conditions set forth specified in Sections Section 6.2(a9.2(a) and Section 6.2(b) have been satisfied9.2(b).

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment or waiver at or prior to the Effective Time of each of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained set forth in Section 4.2(a) (Corporate Authority) this Agreement which are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects, respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) which are not qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of for such representations or warranties failures to be so true and correct as would not have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or and (ii) hereofabove, 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), as applicable) only as of such date or period. (b) Parent shall have (i) 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 and (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesTime. (c) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial OfficerExecutive Officer or another senior officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied. (d) Consistent with Section 2.2(a), Parent shall have caused to be deposited with the Paying Agent cash in an aggregate amount sufficient to pay the Merger Consideration in respect of all Company Common Stock plus cash to pay for the Company Stock Options and the Directors’ Award Accounts pursuant to Section 5.5.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver at by the Company, to the extent permitted by applicable Law, on or prior to the Effective Time of each of of, the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained set forth in Section 4.2(a) (Corporate Authority5.1, Section 5.2, Section 5.3, and Section 5.10(b) shall be true and correct in all respects, 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 for representations and warranties 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 for de minimis inaccuracies with respect to the representations and warranties in Section 5.2 and Section 5.3, and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (Article V other than those referenced in clause (i) aboveof this Section 7.2(a) shall be true and correct in all respects (disregarding any qualifications with respect to materiality or “Parent Material Adverse Effect qualifiers 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, except which need only be true and correct as of such other date or time), except, in the case of this clause (ii), where the failure of such representations or and warranties to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (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), as applicable) only as of such date or period. (b) Parent shall have (i) 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 and (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesTime. (c) Since the date of this Agreement, there shall not have occurred any event, change, effect, development, condition, state of facts or occurrence that, individually or in the aggregate, has had or would be reasonably be expected to have a Parent Material Adverse Effect. (d) Parent shall have executed and delivered the employment agreement with Sxxxxxx Axxxx in the form attached hereto as Exhibit D. (e) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial Officeran executive officer of Parent, certifying to the effect that the conditions set forth in Sections Section 6.2(a7.2(a), 7.2(b) and Section 6.2(b7.2(c) have been satisfied.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger and the other transactions to be effected at the Closing as contemplated hereby is further subject to the fulfillment (or waiver in writing by the Company) at or prior to and as of the Effective Time of each Closing of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained in Section 4.2(a) (Corporate Authority) this Agreement that are qualified by “Parent Material Adverse Effect” shall be true and correct in all respects, at and as of the date of this Agreement and at and as of the Closing Date as though if made at and as of the Closing Date such time (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true only as of such time) and (ii) the other representations and warranties of Parent and Merger Sub set forth contained in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) 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 (other than any such representation and warranty that by its terms addresses matters only as of another specified time, except where the failure which shall be true only as of such representations or warranties to be so true time), with only such exceptions in the case of clause (ii) as have not had, and correct would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (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), as applicable) only as of such date or period. (b) Parent and Merger Sub shall have (i) 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 and (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesClosing. (c) Parent shall have delivered to the Company a certificate, dated as of the Effective Time Closing Date and signed by its Chief Financial OfficerExecutive Officer or another senior officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a7.2(a) and Section 6.2(b7.2(b) have been satisfied.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment (or written waiver at or prior to by the Effective Time of each Company) of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained set forth in Section 4.2(a) (Corporate Authority) this Agreement that are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects, respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) that are not qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of for such representations or warranties failures to be so true and correct as would not havenot, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or 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), as applicable) ), only as of such date or period.; (b) Parent shall have (i) 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 (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated Notes.Time; and (c) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial OfficerExecutive Officer or another senior officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment (or waiver express written waiver, in its sole discretion, by the Company) at or prior to the Effective Time of each of the following conditions: (a) (i) The the representations and warranties of Parent and Merger Sub contained set forth in this Agreement, other than the representations and warranties set forth in the first sentence of Section 4.2(a5.2(a), (i) that are not qualified by Parent Material Adverse Effect shall be true and correct (Corporate Authoritywithout giving effect to any “materiality” qualifiers set forth therein) except for such failures to be true and correct as would not, in the aggregate, reasonably be expected to have a Parent Material Adverse Effect and (ii) that are qualified by Parent Material Adverse Effect shall be true and correct in all respects, at in each case of (i) and as of the date of this Agreement and at and (ii) as of the Closing Date as though made at and as of the Closing Date (or, in the case of those representations and (ii) the warranties that are made as of a particular date or period, as of such date or period). The representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) abovethe first sentence of Section 5.2(a) shall be true and correct in all material respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and Closing Date as though made at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations or warranties to be so true and correct would not have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (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), as applicable) only as of such date or period.; (b) each of Parent and Merger Sub shall have (i) 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 (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated Notes.Time; and (c) Parent shall have delivered to the Company (i) a certificate, dated the Effective Time and signed certificate executed by its Chief Financial Officer, a senior officer of Parent certifying to the effect that the conditions set forth in Sections Section 6.2(a7.2(a) and Section 6.2(b7.2(b) have been satisfiedsatisfied with respect to Parent and (ii) a certificate executed by a senior officer of Merger Sub certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied with respect to Merger Sub.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment or waiver at or prior to the Effective Time of each of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained set forth in Section 4.2(a) (Corporate Authority) this Agreement which are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects, respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) which are not qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of for such representations or warranties failures to be so true and correct as would not have, individually or in the aggregate, a Parent Material Adverse EffectEffect (except that the representations and warranties contained in the second sentence of Section 4.2(a) and the first sentence of Section 4.2(b) shall be true and correct in all material respects); provided, however, that, with respect to clauses (i) or 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), as applicable) only as of such date or period. (b) Parent shall have (i) 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 (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesTime. (c) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial OfficerExecutive Officer or another senior officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied. (d) The Company shall have received from Wachtell, Lipton, Xxxxx & Xxxx, counsel to the Company, 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 the Company 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 the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment or waiver at or prior to the Effective Time of each of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained in Section 4.1 (Qualification, Organization) and Section 4.2(a) (Corporate Authority) shall be true and correct in all respectsrespects (except, in the case of Section 4.1(a) for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations or warranties to be so true and correct would not have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (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), as applicable) only as of such date or period. (b) Parent shall have (i) 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 (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated Notes. Time. -52- (c) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial OfficerExecutive Officer or another senior executive officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment of, or the waiver at by the Company, to the extent permitted by applicable Law, on or prior to the Effective Time of each of of, the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained in Section 4.2(a) this Agreement (Corporate Authorityi) shall be have been true and correct in all respects, at and as of the date of this Agreement except for those representations and at warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date) and (ii) shall be true and correct on and as of the Closing Date with the same force and effect as though if made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of on the Closing Date, except in each case where the failure of such representations or warranties to be so true and correct has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, it being understood that, with respect to clauses (i) or (ii) hereof, for purposes of determining the accuracy of such representations and warranties that are warranties, any update of or modification to the Parent Disclosure Schedule made as or purported to have been made after the date of a particular date or period this Agreement shall be true and correct (in the manner set forth in clauses (i) or (ii), as applicable) only as of such date or perioddisregarded. (b) Parent shall have (i) 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 and (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesTime. (c) There shall not have occurred and be continuing any event, occurrence, revelation or development of a state of circumstances or facts which, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect. (d) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial Officeran executive officer of Parent, certifying to the effect that the conditions set forth in Sections Section 6.2(a6.02(a), 6.02(b) and Section 6.2(b6.02(c) have been satisfied. (e) Parent shall have obtained the Parent Required Consents. (f) The Parent Board shall have been expanded in accordance with Section 5.11(a) and the appropriate designees appointed to the Parent Board in accordance with Section 5.11(b). (g) The counterparties set forth on Section 6.02(f) of the Company Disclosure Schedules shall have agreed to reduce the aggregate Liabilities of the Company to the amount set forth under the heading “New Outstanding Indebtedness.” (h) A Certificate of Amendment to Parent’s certificate of incorporation setting forth the Charter Amendment shall have been duly filed with the Secretary of State of the State of Delaware and be in full force and effect. (i) Parent shall have delivered to the Company a Lock-Up Agreement executed by Parent and each stockholder of Parent set forth on Schedule V attached hereto. (j) Parent shall have no outstanding Parent Closing Indebtedness as of immediately prior to the Effective Time. (k) Parent shall have delivered to the Company a counterpart signature page executed by Parent to each Lock-Up Agreement described in Section 6.03(f). (l) Parent shall not have sold or issued, or entered into any agreement, commitment or arrangement to sell or issue, any New Preferred Stock except for (i) the New Preferred Stock issuable upon the conversion of Parent Stockholder Indebtedness and (ii) the New Preferred Stock sold and issued in the New Preferred Stock Financing. (m) Parent shall have removed all Tax assessments and cleared all Tax delinquencies set forth on Section 4.23 of the Parent Disclosure Schedule (including all interest and penalties) with no further obligation or Liability of Parent with respect thereto. (n) Parent shall have performed and complied with its obligations under Section 5.09(b) and shall have terminated all Parent Employees other than the Continuing Employees and all severance, retention, change of control, COBRA or other payments with respect to such Parent Employees shall have been either paid in full by Parent prior to Closing or included as a Liability of Parent in the Parent Working Capital Deficit.

Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment or waiver at or prior to the Effective Time of each of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained set forth in Section 4.2(a) (Corporate Authority) this Agreement which are qualified by a "Parent Material Adverse Effect" qualification shall be true and correct in all respects, respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) which are not qualified by a "Parent Material Adverse Effect" qualification shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of for such representations or warranties failures to be so true and correct as would not have, individually or in the aggregate, a Parent Material Adverse EffectEffect (except that the representations and warranties contained in the second sentence of Section 4.2(a) and the first sentence of Section 4.2(b) shall be true and correct in all material respects); providedPROVIDED, howeverHOWEVER, that, with respect to clauses (i) or 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), as applicable) only as of such date or period. (b) Parent shall have (i) 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 (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesTime. (c) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial OfficerExecutive Officer or another senior officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied. (d) The Company shall have received from Wachtell, Lipton, Xxxxx & Xxxx, counsel to the Company, 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 the Company 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 the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment or waiver at or prior to the Effective Time of each of the following conditions: (a) (i) The representations and warranties of Parent and Merger Sub contained in Section 4.1 (Qualification, Organization) and Section 4.2(a) (Corporate Authority) shall be true and correct in all respectsrespects (except, in the case of Section 4.1(a) for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement (other than in clause (i) above) shall be true and correct in all respects (disregarding any materiality or Parent Material Adverse Effect qualifiers contained therein) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure of such representations or warranties to be so true and correct would not have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that, with respect to clauses (i) or (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), as applicable) only as of such date or period. (b) Parent shall have (i) 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 (ii) complied in all respects with its obligations in the last sentence of Section 5.15 with respect to Parent’s obligation to arrange or provide financing to the Company to allow it to discharge the Subordinated NotesTime. (c) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by its Chief Financial OfficerExecutive Officer or another senior executive officer, certifying to the effect that the conditions set forth in Sections Section 6.2(a) and Section 6.2(b) have been satisfied.