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

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (or waiver by Parent in its sole discretion) writing at or prior to the Effective Time of the following further additional conditions: (a) The representations and warranties of the Company set forth contained in Sections 5.1, Section 5.2(b), 5.3, 5.4, 5.9(a), 5.20, 5.21, 5.22 and 5.23 of this Agreement shall have been true and correct in all material respects at and that (i) are not made as of the a specific date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at date of this Agreement and as of the Closing Date, except to as though made on and as of the extent that such representations Closing Date, and warranties refer specifically to an earlier date, in which case such representations and warranties (ii) are made as of a specific date shall have been be true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated except for any inaccuracy in the Closing Date signed on behalf representations of the Company by the President in Section 5.3 that results in de minimis liability, cost or expense to Parent or Merger Sub. The other representations and warranties of the Company contained in this Agreement that (A) 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 Date, as though made on and as of the Closing Date, and (B) are made as of a specific date shall be true and correct as of such date, in each case of sub-clauses (A) and (B), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “ Company Material Adverse Effect” set forth in such effect.representations and warranties (other than the representation in Section 5.9(a))), individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (b) The Company shall have performed or complied, in all material respects all obligations required respects, with its obligations, agreements and covenants under this Agreement to be performed or complied with by it under this Agreement at on or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect.Effective Time; and (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from certificate, dated as of the directors and officers Closing Date, signed by an officer of the Company and each Subsidiary certifying as to the satisfaction of the Company conditions specified in office immediately prior to the Effective TimeSection 9.3(a) and Section 9.3(b). (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations obligation of Parent Parent, PHH and Merger Sub to effect the Merger are shall be subject to the satisfaction (fulfillment or waiver (to the extent permitted by Parent in its sole discretionapplicable law) at or prior to the Effective Time of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date Effective Time as if though made at and on or as of the Closing Datesuch time (ignoring for purposes of this determination any materiality or Material Adverse Effect qualifiers contained within individual representations and warranties), except to the extent that such for (i) those representations and warranties refer specifically that address matters only as of a particular date or only with respect to an earlier date, in a specific period of time which case such representations and warranties shall have been need only be true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company date or with respect to such effectperiod and (ii) such failures to be true and correct as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (b) The Company shall have performed and complied in all material respects with all obligations obligations, agreements and covenants required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date. Effective Time, except for such failures to perform or comply as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (c) Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary chief financial officer of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, to the effect that, to the best of such officer's knowledge, the conditions set forth in a form reasonably acceptable to Parent Section 6.3(a) and its counselSection 6.3(b) have been satisfied. (md) Neither the Board nor the Independent Committee (i) shall have withdrawn, modified or changed its approval or recommendation of this Agreement, the Merger or the other Transactions in any manner which Parent reasonably determines to be adverse to Parent, (ii) shall have recommended the approval or acceptance of a Superior Proposal or Third-Party Acquisition from a Person or entity other than a member of the Acquisition Group, or (iii) shall have executed any Company Acquisition Agreement. (e) No event, change, development or circumstance shall have occurred or shall exist which is reasonably expected to result in a Material Adverse Effect. (f) The Company shall have delivered to Parent a duly executed obtained the consents, approvals and certified FIRPTA Certificate. (nwaivers set forth in Section 6.3(f) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective TimeDisclosure Schedule. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (on or waiver by Parent in its sole discretion) prior to the Closing Date of each of the following further conditions:conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law): (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and (without giving effect to any limitation as of the Closing Date as if made to “materiality” or “Material Adverse Effect” set forth therein) at and as of the Closing Date, as if made at and as of such time (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties shall have been to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in all material respects as of such earlier datethe aggregate has not had, and Parent shall would not be reasonably likely to have received or result in, a certificate dated Material Adverse Effect on the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing DateCompany. Parent shall have received a certificate signed on behalf of the Company by the President each of two senior executive officers of the Company to such the foregoing effect.; (cb) The Company shall have taken performed or complied with in all corporate action necessary material respects each of its obligations under this Agreement required to approve be performed or complied with by it at or prior to the transactions contemplated by Closing Date pursuant to the terms of this Agreement. The Company , and Parent shall have furnished Parent and Merger Sub with received a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors signed on behalf of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy by each of resolutions adopted by the holders of at least a majority two senior executive officers of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date.foregoing effect; (dc) There shall not have occurred be pending any eventsuit, occurrence action or change that has hadproceeding, in each case, by any Governmental Entity seeking to (i) prohibit or could reasonably be expected to havelimit in any material respect the ownership or operation by the Company, individually Parent or in Merger Sub or any of their respective affiliates of a substantial portion of the aggregate, a material adverse effect on business or assets of the Company and its Subsidiaries Subsidiaries, taken as a whole. (e) No Action shall be pending , or threatened before to require any court such Person to dispose of or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or hold separate any material portion of the business or assets of the Surviving Corporation Company and its Subsidiaries, taken as a whole, or compel Parent as a result of the Merger or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a wholeother transactions contemplated by this Agreement, or of Parent and its Subsidiaries(ii) restrain, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted preclude, enjoin or shall be deemed applicable to prohibit the Merger which has or any of the effects set forth in clauses (i) through (iii) in Section 8.2(e).other transactions contemplated by this Agreement; and (gd) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis Parent shall have demanded and not lost or withdrawnreceived the opinion of Vxxxxx & Exxxxx L.L.P., or shall be eligible counsel to demandParent, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance reasonably satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, rendered on the basis of facts, representations and assumptions set forth in a form reasonably acceptable to Parent such opinion and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations the certificates obtained from the directors and officers of Parent, Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each Subsidiary be a “party to the reorganization” within the meaning of Section 368 of the Company Code. In rendering the opinion described in office immediately prior to the Effective Time. (o) The Company this Section 6.3(d), Vxxxxx & Exxxxx L.L.P. shall have delivered received and may rely upon the certificates and representations referred to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organizationSection 5.12(c) hereof.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or (or to the extent permitted by Law) waiver by Parent in its sole discretion) at or prior to the Closing of the following further additional conditions: (a) The the representations and warranties of the Company set forth (i) contained in this Agreement shall have been true and correct in all material respects at and as of the date hereof and Section 3.2(a) shall be true and correct in all material respects at (other than de minimis inaccuracies) both as of the date of this Agreement and as of the Closing Date as if though made at on and as of the Closing Date, Date (except to the extent that such representations and warranties refer specifically to an earlier are expressly made as of a specific date, in which case such representations and warranties shall have been be so true and correct as of such specific date), (ii) contained in Sections 3.2(b), 3.2(c), 3.2(d), 3.3, 3.4 and 3.26 (together with Section 3.2(a), the “Company Fundamental Representations”) shall be true and correct in all material respects respects, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such earlier specific date) and (iii) contained in this Agreement (other than the Company Fundamental Representations), shall be true and Parent shall have received a certificate dated correct, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing Date signed as though made on behalf and as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company by the President of the Company to such effect.Material Adverse Effect; (b) The the Company shall have performed or complied in all material respects all with its obligations required under this Agreement to be performed by it under this Agreement at or complied with on or prior to the Closing Date. Closing; (c) since the date of this Agreement, there shall not have been any event, circumstance, occurrence, effect, fact, development or change that, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect; and (d) Parent shall have received a certificate signed on behalf by an executive officer of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects matters set forth in clauses (iSection 6.2(a), Section 6.2(b) through (iii) in and Section 8.2(e6.2(c). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (or, to the extent permitted by Law, waiver) on or waiver by Parent in its sole discretion) prior to the Closing Date of the following further conditions: (a) The (i) the representations and warranties of the Company set forth in this Agreement shall have been true Section 4.01, Section 4.03 (other than Section 4.03(a)), Section 4.04, Section 4.19 and correct Section 4.24 and the representations and warranties of Vista Outdoor set forth in all material respects at Section 10.01(a) and as of the date hereof and Section 10.01(b) shall be true and correct in all material respects at and respects, as of the Closing Date as if though made at and as of the Closing DateClosing, except to the extent that such representations and warranties refer specifically expressly relate to an earlier date, date (in which case as of such earlier date), (ii) the representations and warranties of Company set forth in Section 4.03(a) shall have been be true and correct in all material respects other than de minimis inaccuracies, as of the Closing as though made at the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date), and Parent (iii) all other representations and warranties of Company and Vista Outdoor set forth in this Agreement shall have received a certificate dated be true and correct, disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein, as of the Closing Date signed on behalf as though made at the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date), other than, in the case of this clause (iii), any failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company by the President of the Company to such effect.Material Adverse Effect; (b) The each of Company and Vista Outdoor shall have performed in all material respects all obligations required to be performed by it them under this Agreement Agreement, and each other Transaction Document to which they are a party, at or prior to the Closing Date. Closing; (c) Parent shall have received a certificate signed on behalf of the Company by an executive officer of Company certifying the President satisfaction by Company of the Company to such effect. (cconditions set forth in Sections 7.03(a), 7.03(b) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent7.03(d); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date.; (d) There since the date of this Agreement there shall not have occurred been any eventeffect, change, event or occurrence or change that has had, or could reasonably be expected to havethat, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole.Material Adverse Effect; and (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law Reorganization shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e)completed. (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations obligation of Parent and Merger Sub to effect Effect the Merger are is further subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) (i) The representations and warranties of the Company set forth contained in this Agreement shall have been true and correct in all material respects at and as of the date hereof and ‎Section 4.3 (Authority) shall be true and correct in all material respects at as of the date of this Agreement and as of the Closing Date, (ii) the representations and warranties of the Company contained in ‎Section 4.1 (Organization; Qualification), ‎Section 4.2 (Capitalization), ‎Section 4.4 (Consents and Approvals; No Violations; Voting), ‎Section 4.5‎(b) (SEC Reports and Financial Statements), ‎Section 4.10 (Litigation)(solely with respect to litigation against the Company or its executive officers or directors, but disregarding for the purpose of this clause (ii) any litigation against executive officers and directors arising from allegations of a breach of fiduciary duty relating to this Agreement, the Merger or the other Transactions, or the approval thereof by the Company), ‎Section 4.12(a) – (d) (Taxes), and ‎Section 4.16(a), (b) and (e) (Intellectual Property) shall be true and correct as of the date of this Agreement and (disregarding for such purpose any materiality and Material Adverse Effect qualifier included therein) as of the Closing Date as if made at on and as of the Closing Date, Date (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case as of such date), except for such failures to be true and correct that, individually or in the aggregate, would not have a material effect on the Company and its Subsidiaries, taken as a whole, and (iii) all other representations and warranties of the Company contained in this Agreement shall have been be true and correct as of the date of this Agreement and (disregarding for such purpose any materiality and Material Adverse Effect qualifier included therein) as of the Closing Date as if made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in all material respects which case as of such earlier date), except for such failures to be true and Parent shall correct that, individually or in the aggregate, would not have received a certificate dated Material Adverse Effect. It is hereby clarified that, for purposes of determining the Closing Date signed on behalf satisfaction of this condition, failures or inaccuracies in the representations and warranties of the Company by contained in this Agreement shall be disregarded to the President extent (and only to the extent) that the adjustment provisions set forth in the definition of the Company Per Share Merger Consideration properly account for the damages or losses, if any, attributable to such effectthe same. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. . (c) Parent and Merger Sub shall have received the Company Certificate and a certificate signed on behalf of the Company by the President Chief Executive Officer of the Company as to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate satisfaction of the Secretary of the Companyconditions set forth in ‎Section 7.3(a), dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent‎Section 7.3(b); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in Between the aggregate, a material adverse effect on the Company date of this Agreement and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, there shall not have been any Material Adverse Effect. It is hereby clarified that, for purposes of determining the satisfaction of this condition, Effects that would constitute or contribute to the Material Adverse Effect shall be disregarded to the extent (and only to the extent) that the adjustment provisions set forth in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers definition of the Company and each Subsidiary of Per Share Merger Consideration properly account for the Company in office immediately prior damages or losses, if any, attributable to the Effective Timesame. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (or waiver by the Parent and Merger Sub in its sole their discretion) at or prior to the Effective Time of the following further additional conditions: (a) The the Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time; and the representations and warranties of the Company set forth contained in this Agreement which are qualified with respect to materiality shall have been be true and correct in all material respects at respects, and as of the date hereof such representations and warranties that are not so qualified shall be true and correct in all material respects respects, in each case as of the date of this Agreement and at and as of the Closing Date Effective Time as if made at and as of the Closing Datesuch time, except to as contemplated by the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, Company Disclosure Letter or this Agreement; and Parent and Merger Sub shall have received a certificate dated Certificate of the Closing Date signed on behalf Chief Executive Officer, the President, an Executive Vice President, Senior Vice President or the Chief Financial Officer of the Company by as to the President satisfaction of the Company to such effect.this condition; (b) The the aggregate number of Shares of the Company on the Effective Time of the Merger, the holders of which have delivered notice of their exercise (or intent to exercise) appraisal rights in accordance with the provisions of Section 262 of Delaware Corporate Law, shall not exceed 5% of the Shares outstanding as of the record date for the Company Stockholder Meeting; (c) the Company Voting Agreement and the Proxy shall be in full force and effect and the Company Principal shall have performed in all material respects all obligations required to be performed by it under this the Company Voting Agreement at or and the Proxy prior to the Closing Date. ; and (d) Parent and Merger Sub shall have received a certificate signed on behalf obtained the debt financing necessary to consummate the Merger, to pay off all fees and expenses in connection therewith, to refinance existing indebtedness of the Company by and Parent and to provide working capital for the President of Surviving Corporation pursuant to the Company Debt Financing Commitments or other substantially equivalent financing reasonably acceptable to such effectParent. (ce) The the Company shall have taken all corporate action necessary to approve obtained the consent, approval or waiver of each person whose consent, approval or waiver shall be required in connection with the Merger and the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of , except for those which the Secretary of the Companyfailure to obtain such consent, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence approval or change that has had, or could reasonably be expected to havewaiver, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall could not reasonably be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent expected to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, result in a form reasonably acceptable to Parent and its counselCompany Material Adverse Effect. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated herein are further subject to the satisfaction fulfillment (or waiver in writing by Parent in its sole discretionParent) at or prior to the Effective Time of the following further conditions: (a) The Each of the representations and warranties of the Company set forth in this Agreement Agreement, in each case made as if none of such representations and warranties contained any qualifications or limitations as to “materiality” or “Company Material Adverse Effect,” shall have been be true and correct in all material respects at as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent in either case that such representations and warranties are made as of another specified date hereof on or prior to the date of this Agreement), except where the failure of such representations and warranties to be true and correct as so made would not, individually or in the aggregate, constitute a Company Material Adverse Effect; provided that, notwithstanding the foregoing, each of the representations and warranties of the Company set forth in (i) Section 3.2(a) shall be true and correct as of the date of this Agreement, except for de minimis breaches not involving more than 100,000 Shares, (ii) Sections 3.2(b), 3.2(c), 3.2(d) and 3.3(a) shall be true and correct in all material respects at as of the date of this Agreement and as of the Closing Date as if though made at on and as of the Closing Date and (iii) Sections 3.8(b) and 3.31 shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects 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 Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effectEffective Time. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Subcertificate, dated as of the Closing Date, in a form reasonably acceptable to Parent Date and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers signed by an officer of the Company and each Subsidiary of the Company in office immediately prior Company, certifying to the Effective Timeeffect that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations obligation of Parent Parent, PHH and Merger Sub to effect the Merger are shall be subject to the satisfaction (fulfillment or waiver (to the extent permitted by Parent in its sole discretionapplicable law) at or prior to the Effective Time of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date Effective Time as if though made at and on or as of the Closing Datesuch time (ignoring for purposes of this determination any materiality or Material Adverse Effect qualifiers contained within individual representations and warranties), except to the extent that such for (i) those representations and warranties refer specifically that address matters only as of a particular date or only with respect to an earlier date, in a specific period of time which case such representations and warranties shall have been need only be true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company date or with respect to such effectperiod and (ii) such failures to be true and correct as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (b) The Company shall have performed and complied in all material respects with all obligations obligations, agreements and covenants required by this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date. Effective Time, except for such failures to perform or comply as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (c) Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary chief financial officer of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, to the effect that, to the best of such officer’s knowledge, the conditions set forth in a form reasonably acceptable to Parent Section 6.3(a) and its counselSection 6.3(b) have been satisfied. (md) Neither the Board nor the Independent Committee (i) shall have withdrawn, modified or changed its approval or recommendation of this Agreement, the Merger or the other Transactions in any manner which Parent reasonably determines to be adverse to Parent, (ii) shall have recommended the approval or acceptance of a Superior Proposal or Third-Party Acquisition from a Person or entity other than a member of the Acquisition Group, or (iii) shall have executed any Company Acquisition Agreement. (e) No event, change, development or circumstance shall have occurred or shall exist which is reasonably expected to result in a Material Adverse Effect. (f) The Company shall have delivered to Parent a duly executed obtained the consents, approvals and certified FIRPTA Certificate. (nwaivers set forth in Section 6.3(f) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective TimeDisclosure Schedule. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated hereby are further subject to the satisfaction fulfillment (or waiver in writing by Parent in its sole discretionand Merger Sub) at or prior to the Effective Time of the following further conditions: (a) (i) The representations and warranties of the Company set forth in this Agreement shall have been true Sections 3.1, 3.2, 3.3(a) and correct in all material respects at and as of the date hereof and 3.23 shall be true and correct in all material respects at respects, both when made and as of the Closing Date as if made at and as of the Closing Date, as if made at and as of such time (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case as of such date), and (ii) the other representations and warranties of the Company set forth in Article III shall be true and correct both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except with respect to this clause (ii) where the failure of such representations and warranties shall have been to be so true and correct (without regard to any qualifications or exceptions contained as to materiality or Company Material Adverse Effect contained in all material respects as of such earlier daterepresentations and warranties), and Parent shall have received individually or in the aggregate, has not had a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effectMaterial Adverse Effect. (b) The Company shall have performed in all material respects 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 Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effectEffective Time. (c) The Company shall have taken all corporate action necessary to approve Since the transactions contemplated by date of this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have there has not been amended and are in full force and any event or effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to havethat, individually or in the aggregate, has had a material adverse effect on the Company and its Subsidiaries taken as a wholeMaterial Adverse Effect. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (md) The Company shall have delivered to Parent a duly executed certificate, dated as of the Closing Date and certified FIRPTA Certificatesigned by its Chief Executive Officer or another senior officer, certifying to the effect that the conditions set forth in Section 6.3(a), (b) and (c) have been satisfied. (ne) The Company shall have delivered to Parent resignations from certificate, in the directors form and officers substance required under Treasury Regulation §§ 1.897-2(h) and 1.1445-2(c)(3), certifying that the Company is not and has not been within the past five years a “United States real property holding corporation” within the meaning of Section 897 of the Company and each Subsidiary of the Company in office immediately prior to the Effective TimeCode. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) No temporary restraining order, preliminary or permanent injunction or other Order preventing the consummation of the Acquisition shall be in effect. No Law shall have been enacted or shall be deemed applicable to the Merger which makes the consummation of the Merger illegal. (b) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (bc) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. , and Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e7.2(e). (g) The holders of no not more than two twelve percent (12%) of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed obtained the Consent of each Person whose Consent is required under the Contracts set forth in Schedule 7.1(h) and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company provided evidence of each such Consent in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (li) Parent and Merger Sub shall have received a written opinion from Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a the form reasonably acceptable to Parent and its counselattached as Exhibit E hereto. (mj) The Company Toronto Stock Exchange shall have delivered to Parent a duly executed accepted notice of the Merger and certified FIRPTA Certificateconditionally approved the listing of the shares of common stock of Tucows comprising the Common Stock Merger Consideration. (nk) The Company Parent and Merger Sub shall have delivered received option cancellation and waiver agreements from each Optionholder in form and substance reasonably satisfactory to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective TimeParent. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (or waiver by Parent in its sole discretion) at or prior to the Effective Time of the following further additional conditions: (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (bi) The Company shall have performed in all material respects all its obligations under this Agreement required to be performed by it under this Agreement at or prior to the Closing Date. Parent Effective Time provided, however, that if any breach in the performance of any such obligation shall occur and such breach is capable of being cured, and so long as the Company is diligently attempting to effect such cure, the Company shall have received a certificate signed on behalf five (5) Business Days from the date it has knowledge of such breach to cure such breach; and (ii) the representations and warranties of the Company by the President of the Company to such effect. contained in this Agreement shall be (cA) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy correct in all material respects (unless qualified as to materiality or a Company Material Adverse Effect, all of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement which such representations and the Merger (such resolutions to warranties shall be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be correct in form and substance reasonably satisfactory to Parent); and (iiiall respects) that such resolutions have not been amended and are in full force and effect as of the Closing Date.date of this Agreement (except to the extent such representations and warranties speak as of a specified date, in which case such representations and warranties qualified as to materiality or a Company Material Adverse Effect shall be true and correct in all respects, and those not so qualified shall be true and correct in all material respects, as of such specified date), and (B) true and correct in all respects as of the Effective Time as if made at such time (except to the extent such representations and warranties speak as of a specified date, they need only be true and correct in all respects as of such specified date), except, in the case of this clause (B), where the failure of all such representations and warranties to be true and correct, in the aggregate, has not had, or would not reasonably be expected to have a Company Material Adverse Effect; provided, however, that with respect to both clause (A) and clause (B) above, the statement that representations and warranties already qualified by materiality must be true and correct in all respects, rather than all material respects, does not mean that the word “material” shall not be given effect in Section 2.8, when used to qualify the word “contract,” in Section 2.13(a), when used to qualify the phrase “Tax Returns,” in Section 2.14(b), when used to qualify the phrase “Intellectual Property,” in Section 2.15, when used to qualify the phrase “leases, subleases or other similar arrangements,” in Section 2.17, when used to qualify the word “fact,” or in Section 2.25(a), when used to qualify the word “interest;” (db) There shall not have occurred any fact, event, occurrence change, development, circumstance or change that has had, or could reasonably be expected to haveeffect which, individually or in the aggregate, has had or could reasonably be expected to have a material adverse effect Company Material Adverse Effect; (c) Parent and Merger Sub shall have received evidence of payment of all expenses set forth on Schedule 2.26 of the Company and its Subsidiaries taken Disclosure Schedule, together with a release signed by each party to whom the expenses on such Schedule 2.26 of the Company Disclosure Schedule were owed as a whole.to such expenses; (d) No more than 3% of the outstanding shares of Company Common Stock shall be Dissenting Shares; (e) No Action There shall not be pending any Action challenging this Agreement or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Mergertransactions contemplated hereby, (ii) affect adversely the right of Parent seeking to control the Company and the Subsidiaries of the Company or (iii) delay, restrain or prohibit Parent’s the Merger or seeking to prohibit or impose material limitations on the ownership or operation (or that of its Subsidiaries or Affiliates) operations of all or any a material portion of the business operations or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent Company or any of its Subsidiaries that would be effective after the Effective Time or Affiliates to dispose seeking the payment of or hold separate all or any material portion amount of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be damages in effect.respect thereto other than claims for appraisal rights by Dissenting Shares; (f) No Law The Voting Agreement shall not have been enacted or shall be deemed applicable to the Merger which has breached in any material respects by any of the effects set forth in clauses (i) through (iii) in Section 8.2(e).“Stockholders” defined therein; (g) The holders of no more than two percent Parent shall have received a copy of the Company Shares Company’s preliminary unaudited internal operating balance sheet and profit and loss statement (prepared in form and substance on an as-converted a basis consistent with past practice) for and as of the most recent calendar month ending not less than thirty (30) days prior to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rightsthe Closing Date. (h) The Chief Financial Officer Parent shall have received the following instruments and the Secretary certificates (including without limitation certificates of good standing of each of the Company shall have executed and delivered the Xxxxxx Subsidiary in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to Parent the Allocation Certificate.incumbency of officers and the adoption of authorizing resolutions); and (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to certificate of the chief executive officer and the chief financial officer of the Company, addressed to Parent and Merger Sub, dated acting in their sole capacity as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and such officers of the Company and each Subsidiary Company, as to the satisfaction of the Company conditions set forth in office immediately prior to the Effective TimeSection 5.3(a) and Section 5.3(b). (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The Unless waived by Parent and Merger Sub, the obligations of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the additional following further conditions: (a) The the Company shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) its agreements contained in this Agreement required to be performed on or prior to the Closing Date; (b) the representations and warranties of the Company set forth contained in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at (or in all respects in the case of any representation or warranty containing any materiality qualification) on and as of the date made and on and as of the Closing Date as if made at and as of such date; (c) since the date hereof, there shall have been no changes that constitute, and no event or events shall have occurred which have resulted in or constitute, a Material Adverse Effect; (d) all governmental waivers, consents, orders, permit transfers (including without limitation Environmental Permits) and approvals legally required for the consummation of the Merger and the transactions contemplated hereby or to permit Parent to carry on the business of the Company after Closing in accordance with past customs and practice shall have been obtained and be in effect at the Closing Date, except and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value of the Company to Parent; (e) all waivers, consents and approvals from third parties necessary for the extent that such representations transfer of any material contracts, financial assurances and warranties refer specifically to an earlier dateany other rights and benefits in connection with the Merger, in which case such representations or necessary for the consummation of the Merger and warranties the transactions contemplated hereby shall have been true obtained and correct be in effect at the Closing Date; (f) all material respects transactions, contracts, agreements and guarantees between the Company and any Shareholder or any Affiliate of the Company or any Shareholder shall have been terminated and all amounts owed by the Shareholders and their Affiliates to the Company shall have been paid in full; (g) the Company shall have entered into new real property leases with respect to properties owned by the Shareholders, or any Affiliates of the Shareholders, in form attached hereto as EXHIBIT D; PROVIDED, HOWEVER, in no event shall such lease payments under such leases exceed the aggregate amount paid for such properties under current leases; (h) the Company shall have terminated its tax-qualified 401(k) plan; (i) the board of directors and Shareholders of the Company shall approve this Agreement and the closing of the transactions contemplated herein; (j) the board of directors of Parent shall approve this Agreement and the closing of the transactions contemplated herein; (k) Parent shall have completed its due diligence review regarding the Company and its business, finances, operations, assets, liabilities, taxes, insurance, contracts, prospects and environmental and other matters as Parent deems relevant and Parent shall be satisfied, in its sole discretion, with the results of such earlier date, and review; (l) Parent shall have received a certificate certificate, dated the Closing Date signed on behalf within ten (10) days of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate , of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy State of resolutions adopted unanimously by the Board of Directors of North Carolina establishing that the Company approving this Agreement is in existence and the Merger (such resolutions is in good standing to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or transact business in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation state of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel.incorporation; (m) The Company Parent shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent received the resignations from of the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time.Company; and (on) The Company Parent shall have delivered to Parent certificates of good standing for received a legal opinion from Bell, Davis & Pitt, P.A., in the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.form attached hereto as EXHIBIT E;

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in Article III of this Agreement shall have been true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or “Material Adverse Effect”, which representations and warranties as so qualified shall be true and correct in all respects) at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President Chief Executive Officer of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Date and Parent shall have received a certificate dated as of the Closing Date signed on behalf of the Company by the President Chief Executive Officer of the Company to such effect. (c) Since the date of this Agreement there shall not have occurred a Material Adverse Effect on the Company or any change, development or effect which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Company, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect. (d) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of Executed Written Consent effecting the then outstanding Required Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent)Stockholder Vote; and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No (i) no Action shall be pending or threatened in writing before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (iA) prevent consummation of the Merger, (iiB) affect adversely the right of Parent or its Affiliates to control the Company and the Subsidiaries of the Company or (iiiC) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its SubsidiariesCorporation, taken as a whole, or of Parent Parent; and its Subsidiaries, taken as a whole. No (ii) no such Order shall be in effect. (f) No Law The Company shall have been enacted or shall be deemed applicable to obtained the Merger which has any of the effects consents and waivers set forth in clauses on Schedule 7.2(f) (i) through (iii) in Section 8.2(ethe “Required Consents”). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate for purposes of satisfying Parent’s obligations under Treasury Regulation Section 1.1445-2(c)(3) (the “FIRPTA Certificate”). (nh) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company Company, other than Xxxxx (Ed) X. Xxxxxxx, D.O., in office immediately prior to the Effective Time. (oi) No more than two (2) Business Days prior to the Closing Date, the Company shall have furnished Parent and Merger Sub with a certificate of the Chief Executive Officer of the Company, dated as of the Closing Date, (A) certifying the computation of Net Cash (including Effective Time Cash, Company Effective Time Acquisition Expenses and Company Effective Time Indebtedness) of the Company as of the Effective Time, (B) attaching a pay-off letter in form and substance reasonably satisfactory to Parent duly executed by each holder of Company Effective Time Indebtedness together with wire instructions for the payment thereof and (C) attaching a final invoice from each Person to whom Company Effective Time Acquisition Expenses are owed together with wire instructions for the payment thereof (other than any Company Effective Time Acquisition Expenses payable to the Terminated Employees, which shall be payable in accordance with the terms of the Separation Agreements) (the “Net Cash Closing Certificate”). (j) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date no more than five (5) Business Days prior to the Closing Date, . (k) Parent and certificates of good standing Merger Sub shall have received an opinion from counsel for the Subsidiaries Company in substantially the form attached hereto as Exhibit E. (l) The Company shall have received the Required Company Stockholder Vote. (m) The Company shall have terminated the Company Stock Option Plan and shall have provided Parent with satisfactory evidence thereof. (n) All outstanding Company Stock Options and Company Stock Equivalents shall have been exercised or terminated and the Company shall have provided Parent with satisfactory evidence thereof. (o) The Company shall not have any outstanding Liens (other than Permitted Liens). (p) The Company shall not have any outstanding Company Effective Time Acquisition Expenses (other than amounts payable to Terminated Employees pursuant to the Separation Agreements) and the Company shall have delivered a certificate of the Company dated the Closing Date signed on behalf of the Company by the Chief Executive Officer of the Company to such effect. (q) All approvals, waivers and consents necessary for consummation of or in connection with the Merger and the several transactions contemplated hereby shall have timely obtained from each Governmental Entity. (r) None of the Key Employee Agreements and Company Stockholder Agreements shall have been rescinded (or attempted to have been rescinded) by any of the parties thereto and each of the Key Employee Agreements and Company Stockholder Agreements shall remain in full force and effect. (s) The Company Contracts listed on Schedule 7.2(s) shall be terminated and the Company shall have provided Parent with satisfactory evidence thereof. (t) The Company’s employees set forth on Schedule 7.2(t) (the “Terminated Employees”) shall have entered into separation agreements and/or releases providing for the termination of such employees’ employment effective immediately prior to the Effective Time and release of the Company, Merger Sub and Parent, and which shall be in form and substance reasonably satisfactory to Parent (the “Separation Agreements”). (u) The Company’s employees set forth on Schedule 7.2(u) (the “Continuing Employees”) shall be employed by the Company and their respective employment agreements or offer letters as currently in effect, as applicable, shall be in effect, at the Closing. (v) shall have each entered into a transition and release agreement providing for release of the Company, Merger Sub and Parent and providing for certain transition services, each of which shall be in form and substance reasonably satisfactory to Parent. (w) Parent shall have received approval for listing the Parent Shares from the applicable Governmental Entities NYSE MKT LLC. (x) With respect to any payment of cash, stock or otherwise that constitutes a “parachute payment” pursuant to Section 280G of the Code, the Stockholders, pursuant to the Required Company Stockholder Vote, shall have (i) approved pursuant to a method provided for in each the regulations promulgated under Section 280G of the Code any such Subsidiary’s jurisdiction of organization“parachute payments” or (ii) shall have voted upon and disapproved such parachute payments, and, as a consequence, such “parachute payments” shall not be made or provided for in any manner.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be subject at the option of Parent and Merger Sub to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditions: (a) The representations the Company and warranties each of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company Shareholders shall have performed in all material respects all obligations its agreements contained in this Agreement required to be performed by it under this Agreement at on or prior to the Effective Time and the representations and warranties of the Company and the Company Shareholders set forth in Article IV and IVA hereof, respectively, shall be true, correct and complete as of the Effective Time as if made as of such time other than representations or warranties that speak as of a particular date, which shall continue to be true, correct and complete as of such date, and except as contemplated or permitted by this Agreement; and at the Closing Date. Parent and Merger Sub shall have received a certificate signed on behalf of the Company executed by the President of the Company and each Company Shareholder executing a counterpart signature page to such effect.this Agreement to the foregoing effects; (b) no action, suit, claim, investigation or proceeding shall be pending or threatened against the Company or its properties and assets which, if adversely determined, could reasonably be expected to have a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company; (c) The Company At the Closing, there shall have taken all corporate action necessary be delivered to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub the opinion of Foley, Hoag & Eliot LLP, counsel for the Company and the Company Sharexxxxxrs, xxted xxx Closing Date, in form and substance satisfactory to Parent and Merger Sub and their counsel and substantially as set forth in Exhibit E: (d) Parent shall have received an unqualified written opinion from Arthur Andersen, L.L.P., Parent's independent accountants, that both pxxxxxx xx xxx Xerger are poolable and that the Merger qualifies as a "pooling of interests" under generally accepted accounting principles. (e) the Company shall have received all Required Consents and all consents, authorizations or approvals from the governmental agencies, as well as all consents and waivers required under the Company's Restated Certificate of Incorporation in each case in form and substance satisfactory to Parent and Merger Sub and their counsel, and no such consent, authorization or approval shall have been withdrawn; (f) all corporate and other proceedings to be taken by the Company in connection with the transactions contemplated hereby and all documents incident thereto shall be satisfactory in form and substance to Parent and Merger Sub and their counsel, and Parent and Merger Sub and their counsel shall have received all such counterpart originals or certified or other copies of such documents as they reasonably may request; (g) At or prior to the Closing, Parent shall have received copies of the following documents: (A) the Restated Certificate of Incorporation of the Company and each subsidiary, certified as of a recent date by the Secretary of State of the State of Delaware or a similar official in its jurisdiction of incorporation and (B) a certificate of said Secretary dated as of a recent date as to the due incorporation and good standing of the Company and each subsidiary, and listing all documents of the Company and each subsidiary on file with said Secretary. (ii) A certificate of the Secretary of the Company, Company dated the Closing Date, certifying thatDate and certifying: (iA) that attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors By-laws of the Company approving this Agreement and each subsidiary as in effect on the Merger (date of such resolutions to be in form and substance reasonably satisfactory to Parent)certification; (iiB) that attached thereto is a true and complete copy of all resolutions adopted by the holders Board of at least a majority Directors or the shareholders of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (authorizing the execution, delivery and performance of this Agreement, and that all such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as and are all the resolutions adopted in connection with the transactions contemplated by this Agreement; (C) that the Restated Certificate of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries Incorporation of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion has not been amended since the date of the business or assets last amendment referred to in the certificate delivered pursuant to clause (i)(B) above; and (D) as to the incumbency and specimen signature of each officer of the Surviving Corporation Company executing this Agreement, and its Subsidiariesany certificate or instrument furnished pursuant hereto, taken as and a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion certification by another officer of the business or assets Company as to the incumbency and signature of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be officer signing the certificate referred to in effect. this clause (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(eii). (giii) The holders of no more than two percent Such additional supporting documents and other information with respect to the operations and affairs of the Company Shares on an as-converted to Common Stock basis shall have demanded as Parent and not lost Merger Sub or withdrawn, or shall be eligible to demand, appraisal rightstheir counsel reasonably may request. (h) The Chief Financial Officer and Parent shall be satisfied, in its sole discretion after consultation with its counsel, that the Secretary issuance of Parent Common Stock hereunder shall have been conducted in compliance with Regulation D of the Company shall have executed and delivered to Parent the Allocation Certificate.Securities Act; (i) Alchemy Communications, Inc. The Company shall have entered into an agreement furnished Parent with a true and complete copy of the audited balance sheets of the Company in form as of December 31, 1996 and substance satisfactory to Parent December 31, 1997 and the Company audited statements of operations, shareholders' equity and containing a term of five (5) yearscash flows for the twelve months ended December 31, 1996 and December 31, 1997 . (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly properly executed statement satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) in a form reasonably acceptable to Parent; (k) No material adverse change in the business, assets, condition (financial or otherwise) or results of operations of the Company or any subsidiary shall have occurred since the date of this Agreement. (l) Holders of Outstanding Company Shares representing at least ninety-five percent (95%) of the voting power of Company Shares entitled to approve the Merger and the form of this Agreement shall have executed and certified FIRPTA Certificatedelivered the Company's Shareholders' Consent in favor of the transactions contemplated herein. (m) Each of Mark Galvin, Reed Simpson and Steve Nickerson shall have executed an Exxxxxxx Xxx-Dxxxxxxxxx, Xnventxxx xxx Xxxxxxxt Not to Compete Agreement in substantially the form of Exhibit F. (n) The With respect to all payments that would constitute "excess parachute payments" (within the meaning of Section 280G of the Code) but for the exceptions set forth in Sections 280G(b)(4) and 280G(b)(5) of the Code, the Company shall have delivered to Parent resignations from obtain the directors and officers shareholder approval described in Section 280G(b)(5)(B) of the Company and each Subsidiary Code so that such payments will not be nondeductible under Section 280G of the Company in office immediately prior Code and will not be subject to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State tax imposed under Section 4999 of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organizationCode.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (ai) The representations and warranties of the Company set forth in Sections 3.2(a) (first sentence), 3.2(b) (first sentence), 3.2(c) (first two sentences) and 3.4(a) of this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at on and as of the date of this Agreement and on and as of the Closing Date as if made at and as of the Closing Date, except to the extent that though such representations and warranties refer specifically were made on and as of such date (except for representations and warranties which address matters only as to an earlier a specified date, in which case such representations and warranties shall have been be true and correct in all material respects with respect to such specified date), and (ii) all other representations and warranties of the Company in this Agreement, disregarding the phrase "in all material respects" or any Company Material Adverse Effect qualifications contained in such representations and warranties, shall be true and correct in all respects on and as of the date of this Agreement and on and as of the Closing Date as though such representations and warranties were made on and as of such earlier date (except for representations and warranties which address matters only as to a specified date, which representations and warranties, disregarding the phrase "in all material respects" or any Company Material Adverse Effect qualifications contained in such representations and warranties, shall be true and correct with respect to such specified date); provided, however, that any inaccuracies in such representations and warranties shall be disregarded unless all such inaccuracies, considered collectively, shall have had, and shall continue to have, a Company Material Adverse Effect. Parent shall have received a certificate dated the Closing Date to such effect signed on behalf of the Company by the President Chief Executive Officer and Chief Financial Officer of the Company to such effectCompany. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate to such effect signed on behalf of the Company by the President a duly authorized executive officer of the Company to such effectCompany. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before by any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) seeking to prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (fd) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects The individuals set forth in clauses (ion Schedule 8.2(d) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with Employment Arrangements in the Company in form and substance satisfactory to agreed upon by Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately such individuals prior to the Effective Time Agreement Date, all of which shall have duly executed be in full force and delivered effect (excluding any failure to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received be in full force or effect as a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as result of the Closing Date, in a form reasonably acceptable to Parent and its counseldeath or incapacity of any such individual). (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The Unless waived by Parent and Merger Sub, the obligations of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the additional following further conditions: (a) The the Company shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) its agreements contained in this Agreement required to be performed on or prior to the Closing Date; (b) the representations and warranties of the Company set forth contained in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at (or in all respects in the case of any representation or warranty containing any materiality qualification) on and as of the date made and on and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect.; (c) The Company since the date hereof, there shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company been no changes that constitute, and no event or events shall have furnished Parent and Merger Sub with occurred which have resulted in or constitute, a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date.Material Adverse Effect; (d) There shall not have occurred any eventall governmental waivers, occurrence or change that has hadconsents, or could reasonably be expected to haveorders, individually or in permit transfers (including without limitation Environmental Permits) and approvals legally required for the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely Merger and the right of transactions contemplated hereby or to permit Parent to control carry on the Company and the Subsidiaries business of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation after Closing in accordance with past customs and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law practice shall have been enacted or shall obtained and be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to effect at the Closing Date, and certificates of good standing for no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the Subsidiaries value of the Company to Parent; (e) all waivers, consents and approvals from third parties necessary for the applicable Governmental Entities transfer of any material contracts, financial assurances and any other rights and benefits in each such Subsidiary’s jurisdiction connection with the Merger, or necessary for the consummation of organization.the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date; (f) all transactions, contracts, agreements and guarantees between the Company and the Shareholder or any Affiliate of the Company or the Shareholder shall have been terminated and all amounts owed by the Shareholder and his Affiliates to the Company shall have been paid in full; (g) the board of directors and Shareholder of the Company shall approve this Agreement and the closing of the transactions contemplated herein; (h) the board of directors of Parent shall approve this Agreement and the closing of the transactions contemplated herein;

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or (or to the extent permitted by Law) waiver by Parent in its sole discretion) at or prior to the Closing of the following further additional conditions: (a) The the representations and warranties of the Company set forth (i) contained in this Agreement shall have been true and correct in all material respects at and as of the date hereof and Section 3.2(a) shall be true and correct in all material respects at (other than de minimis inaccuracies) both as of the date of this Agreement and as of the Closing Date as if though made at on and as of the Closing Date, Date (except to the extent that such representations and warranties refer specifically to an earlier are expressly made as of a specific date, in which case such representations and warranties shall have been be so true and correct as of such specific date), (ii) contained in Section 3.2(b), Section 3.2(c), Section 3.2(d), Section 3.3, Section 3.4 and Section 3.26 (together with Section 3.2(a), the “Company Fundamental Representations”) shall be true and correct in all material respects respects, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such earlier specific date) and (iii) contained in this Agreement (other than the Company Fundamental Representations), shall be true and Parent shall have received a certificate dated correct, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing Date signed as though made on behalf and as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations and warranties shall be so true and correct as of such specific date), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company by the President of the Company to such effect.Material Adverse Effect; (b) The the Company shall have performed or complied in all material respects all with its obligations required under this Agreement to be performed by it under this Agreement at or complied with on or prior to the Closing Date. Closing; (c) since the date of this Agreement, there shall not have been any event, circumstance, occurrence, effect, fact, development or change that, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect; and (d) Parent shall have received a certificate signed on behalf by an executive officer of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects matters set forth in clauses (iSection 6.2(a), Section 6.2(b) through (iii) in and Section 8.2(e6.2(c). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement that are qualified by materiality (considered collectively and individually) shall have been true and correct at and as of the date hereof and shall be true and correct at and as of the Closing Date as if made at and as of the Closing Date, and the representations and warranties that are not so qualified (considered collectively and individually) shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date; provided that, with respect to obligations that are qualified by materiality, the Company shall have performed such obligations, as so qualified, in all respects. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could would reasonably be expected to have, individually or in a Company Material Adverse Effect, which shall include, without limitation, that the aggregate, a material adverse effect on Company’s auditors have indicated that their audit report relating to the Company’s most recently completed fiscal year must be qualified to reflect that there is doubt that the Company and its Subsidiaries taken can continue as a whole“going concern.” (ed) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would Entity, in each case that has a reasonable likelihood of success, (i) seeking to prevent consummation of the Merger, (ii) affect adversely the right of Parent Merger or seeking to control the Company and the Subsidiaries of obtain from the Company or (iii) restrain or prohibit Parent’s ownership or operation (or Parent damages that of its Subsidiaries or Affiliates) of all or any are material portion of in relation to the business or assets of the Surviving Corporation Company and its Subsidiaries, taken as a whole, or compel Parent or and its Subsidiaries, taken as a whole, as the case may be, (ii) seeking to impose any material limitation on the right of Parent to control the Company and its Subsidiaries or Affiliates any other Affiliate of Parent, (iii) seeking to dispose restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or hold separate all or Affiliates) of any material portion of the business or assets of the Surviving Corporation Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, or to compel the Company or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole, and if such business or assets relate to the Company or any of its Subsidiaries, such business or assets are material to the financial condition, results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and if such business or assets relate to Parent or any of its Subsidiaries, such business or assets are material to the financial condition, results of operations or prospects of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No , and no Law shall have been enacted or shall be deemed applicable to the Merger Merger, which has any of the effects set forth in clauses (i) through (iii) in this Section 8.2(e8.2(d). (ge) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed obtained the Consent of each Person whose Consent is required under the Material Contracts set forth in the Company Disclosure Schedule and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company provided evidence of each such Consent in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (nf) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office holding such position immediately prior to the Effective Time. (og) The Company shall have delivered to Parent satisfactory evidence of the cancellation of all of the Company Stock Options and Other Purchase Rights and the termination of all Company Stock Option Plans. (h) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and CaliforniaNew Jersey, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities Secretary of State of the State of Delaware. (i) Each of the executive officers and directors of the Company shall have delivered a Voting Agreement on the date hereof and shall have complied with and not be in each breach of their respective obligations under the Voting Agreement and all of the Company Common Stock subject to a Voting Agreement shall have been voted in favor of the approval and adoption of this Agreement and the Merger (which vote shall not have been revoked). (j) The Company shall have delivered to Parent and Merger Sub (i) a certificate dated as of the date of Closing, signed on its behalf by its chief executive officer and its chief financial officer to the effect that the obligations under Section 8.2(a) through (e) and (g) of this Agreement have been satisfied and (ii) copies of all documents that Parent may reasonably request relating to the existence of the Company and certified copies of resolutions or written consents duly adopted by the Board of Directors of the Company and any of its Subsidiaries evidencing the taking of all corporate action necessary to authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, all in such Subsidiary’s jurisdiction reasonable detail as Parent and its counsel may request. (k) The number of organizationshares of Company Common Stock held by holders demanding appraisal rights pursuant to the provisions of Section 262 of the DGCL shall represent not more than ten percent (10%) of the outstanding Company Common Stock as of the Effective Date. (l) The Company not accepting any buy out of royalties from Progenics without prior consultation with Parent. (m) The Company shall have filed its Annual Report on Form 10-K with the Securities and Exchange Commission, including audited financial statements for the year ended December 31, 2007, no later than March 17, 2008.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The All obligations of Parent and Merger Sub to effect consummate the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction of each of the following conditions (or waiver each of which are for the sole benefit of Parent and Merger Sub and their affiliates and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such condition or may be waived by Parent, in whole or in part, from time to time in its sole discretion) ), and the Company shall use its commercially reasonable efforts to cause each of the following further conditionssuch conditions to be satisfied: (a) The representations and warranties of the Company set forth in Article III of this Agreement (i) that are qualified by materiality or Material Adverse Effect shall have been be true and correct in all material respects at respects, and as of the date hereof and (ii) that are not so qualified shall be true and correct in all material respects at respects, in each case as of the date of this Agreement and as of the Closing Date as if though such representations and warranties had been made at by the Company on and as of the Closing Date, except to and the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received at the Closing a certificate certificate, dated the Closing Date Date, signed on behalf of the Company by the President Chief Executive Officer of the Company to such effect. (b) The Company shall have performed and complied in all material respects with all obligations covenants, agreements and conditions contained in this Agreement required to be performed by it under this Agreement at the Company on or prior to the Closing Date. , and the Parent shall have received at the Closing a certificate certificate, dated the Closing Date, signed on behalf of the Company by the President Chief Executive Officer of the Company to such effect. (c) The Company shall have All corporate and other proceedings to be taken all corporate action necessary to approve in connection with the transactions contemplated by this Agreement. The Company Agreement shall have furnished Parent been taken and Merger Sub with a certificate of the Secretary of the Companyobtained, dated the Closing Date, certifying that: (i) attached and all documents incident thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to shall be reasonably satisfactory in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company , both of whom shall have delivered to Parent a duly executed and received all such originals or certified FIRPTA Certificateor other copies of such documents as either may reasonably request. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (or waiver by Parent in its sole discretion) fulfillment of the following further conditions: (a) (i) The representations and warranties of the Company set forth in this Agreement shall have been true Sections 3.1, 3.2, 3.3 and correct in all material respects at and as of the date hereof and 3.14 shall be true and correct in all material respects at respects, and as (ii) the other representations and warranties of the Closing Date Company set forth in ARTICLE III shall be true and correct (disregarding all qualifications or limitations as if made to “materiality,” “Material Adverse Effect” and words of similar import set forth therein) at and as of the Closing Date, as if made at and as of such time (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties shall have been to be so true and correct in all material respects as of such earlier date, and Parent shall would not have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effectMaterial 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 Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effectEffective Time. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no Not more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 9510% of the shares of Company outstanding Common Stock outstanding as of immediately prior to the Effective Time shall have duly executed made, and delivered not withdrawn, written demand on the Company for the purchase of their shares of Common Stock in connection with the Merger in compliance with the requirements of Section 262 of the DGCL. (d) The Offer Letter (including the CIIA attached thereto) shall remain in full force and effect and Raza shall not have (nor shall have indicated an intent to) rescinded, terminated or otherwise failed to Parent perform his obligations under the Stockholders’ Representative Offer Letter. (e) Each of the Noncompetition Agreements shall remain in full force and effect and no party thereto shall have (or shall have indicated an intent to) rescinded, terminated or otherwise failed to perform his obligations under any such Noncompetition Agreement. (lf) Parent (i) At least ten (10) of the employees of the Company and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated ’s Subsidiaries as of the date of this Agreement (when counted together with Raza and the individuals listed on Schedule 6.3(j) hereto ) shall have become Continuing Employees. Each Continuing Employee shall have remained continuously employed with the Company from the date of this Agreement through the Closing Date, and shall have signed each of the documents referenced in a form reasonably acceptable Section 5.5(b) and no action shall have been taken by any such individual to Parent rescind any such documents; and its counsel(ii) the employment of each of the Designated Employees and each other employee who has declined Parent’s offer of continued employment shall have been terminated effective no later than immediately prior to the Closing. (mg) The Company shall have delivered to Parent a duly executed certificate, dated as of the Closing Date and certified FIRPTA Certificatesigned by a officer, certifying to the effect that the conditions set forth in Sections 6.3(a) and 6.3(b) have been satisfied. (nh) All holders of Company Stock Options issued under the 1995 Plan shall have executed agreements in forms reasonably satisfactory to Parent providing that such securities will automatically terminate at the Effective Time without payment of any consideration therefor by Company, Parent or Merger Sub other than the consideration described in Section 2.3(a). All persons who (i) are providing services to the Company as of the date of this Agreement (whether as employees, consultants, directors or otherwise) and (ii) are holders of Company Stock Options and/or Warrants, shall have executed agreements in forms reasonably satisfactory to Parent releasing the Company, Parent and their respective affiliates from any claims and providing for the cancellation of such Company Stock Options and Warrants in exchange for the cash payments contemplated by Section 2.3(a) and Section 2.4(a). (i) The Company shall have delivered to Parent resignations from evidence, in form and substance reasonably acceptable to Parent, that, effective no later than the directors Effective Time, each of the current authorized signatories on all of the bank and officers deposit accounts of the Company shall be removed as signatories from such accounts and each Subsidiary the representatives of Parent identified on Schedule 6.3(i) hereto shall be appointed as the sole authorized signatories on such accounts. (j) Each of the Company individuals listed on Schedule 6.3(j) hereto (other than Raza) shall have executed (i) an employee offer letter in office immediately prior a form reasonably satisfactory to Parent, (ii) the CIIA and (iii) a Noncompetition Agreement , the form of which is attached hereto as Annex III, which agreements shall remain in full force and effect as of the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organizationindividuals shall not have (nor shall they have indicated an intent to) rescinded, terminated or otherwise failed to perform their obligations under such agreements.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (or or, to the extent permitted by Applicable Law, waiver by Parent in its sole discretion) writing at or prior to the Effective Time of the following further additional conditions: (a) The Each of the representations and warranties of the Company contained in this Agreement 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, in each case, except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “ Company Material Adverse Effect” set forth in such representations and warranties), individually or in the aggregate, has not had a Company Material Adverse Effect; provided, however, that notwithstanding anything to the contrary set forth above in this Section 9.3(a), as of the date of this Agreement and as of Closing, as though made on and as of the Closing (or, in the case of those representations and warranties that are made as of a specific date, as of such date), (x) the representations and warranties of the Company set forth in this Agreement shall have been true Section 5.1 (Corporate Status) and correct in all material respects at the first and as last sentences of the date hereof and Section 5.4 (Authority for Agreements) shall be true and correct in all material respects at and as of respects, (y) the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, of the Company set forth in which case such representations and warranties Section 5.3 (Capitalization) shall have been be true and correct in all material respects as respects, except for any de minimis inaccuracy (it being agreed that any inaccuracy that would not reasonably be expected to result in additional cost, expense or liability to Parent of such earlier datemore than $750,000 shall be deemed to be a de minimis inaccuracy), and Parent shall have received a certificate dated (z) the Closing Date signed on behalf representations and warranties of the Company by the President set forth in Section 5.9 (Absence of the Certain Changes), Section 5.21 (Anti-Takeover Laws), Section 5.22 (Company to such effect.Stockholder Approval), Section 5.23 (Opinion of Financial Advisor), and Section 5.25 (Brokers) shall be true and correct in all respects; (b) The Company shall have performed or complied with, in all material respects all obligations required respects, each of its obligations, agreements and covenants under this Agreement to be performed or complied with by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect.Effective Time; (c) The Company shall have taken all corporate action necessary to approve Since the transactions contemplated by date of this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There there shall not have occurred any change, event, occurrence circumstance, development or change effect that has had, had or could reasonably be expected to haveconstitutes, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole.Material Adverse Effect; (d) The Company Stockholders Agreement shall have been duly terminated; (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed certificate, dated as of the Closing Date, signed by an officer of the Company and certified FIRPTA Certificate.certifying as to the satisfaction of the conditions specified in Section 9.3(a) through Section 9.3(c); and (nf) The Company shall have delivered to Parent resignations a certification from the directors and officers Company on behalf of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. its stockholders, dated no more than thirty (o30) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date calendar days prior to the Closing DateDate and signed by a responsible officer of the Company, reasonably acceptable to Parent, that the Company is not, and certificates has not been at any time during the five years preceding the date of good standing for the Subsidiaries such certification, a United States real property holding company, as defined in Section 897(c)(2) of the Company from Code; and (g) There shall not be any action taken, regulatory or governmental approval granted or issued or any statute, rule, regulation, order or decree enacted, entered, enforced or deemed applicable to the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organizationMerger or the transactions contemplated by this Agreement that imposes any Burdensome Condition.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be subject at the option of Parent and Merger Sub to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations its agreements contained in this Agreement required to be performed by it under this Agreement at on or prior to the Effective Time and the representations and warranties of the Company and the Company Shareholders set forth in Article IV and IV-A hereof shall be true, correct and complete as of the Effective Time as if made as of such time other than representations or warranties that speak as of a particular date, which shall continue to be true, correct and complete as of such date, and except as contemplated or permitted by this Agreement; and at the Closing Date. Parent and Merger Sub shall have received a certificate signed on behalf of the Company executed by the President of the Company to such effect.the foregoing effects with respect to the agreements, representations and warranties of the Company; (b) no action, suit, claim, investigation or proceeding shall be pending or threatened against the Company or its properties and assets which, if adversely determined, could reasonably be expected to have a Material Adverse Effect on the business, assets, condition (financial or otherwise) or results of operations of the Company; (c) The Company At the Closing, there shall have taken all corporate action necessary be delivered to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub the opinion of Folex, Xxag & Xliox XXX, counsel for the Company and the Company Shareholders, dated the Closing Date, in form and substance satisfactory to Parent and Merger Sub and their counsel and substantially as set forth in Exhibit E; (d) Parent shall have received a letter from Pricewaterhouse Coopers LLP, auditors for Parent, in a form reasonably satisfactory to Parent, regarding its concurrence with the conclusion of Parent that both parties to the merger are poolable entities and that Parent may treat the Merger as a "pooling of interests" for accounting purposes under Accounting Principles Board Opinion No. 16 and the applicable rules and regulations of the Commission. (e) the Company shall have received all Required Consents and all consents, authorizations or approvals from the governmental agencies, as well as all consents and waivers required under the Company's Certificate of Incorporation in each case in form and substance satisfactory to Parent and Merger Sub and their counsel, and no such consent, authorization or approval shall have been withdrawn; (f) all corporate and other proceedings to be taken by the Company in connection with the transactions contemplated hereby and all documents incident thereto shall be satisfactory in form and substance to Parent and Merger Sub and their counsel, and Parent and Merger Sub and their counsel shall have received all such counterpart originals or certified or other copies of such documents as they reasonably may request; (g) At or prior to the Closing, Parent shall have received copies of the following documents: (i) to the due incorporation and good standing of the Company, and listing all documents of the Company on file with said Secretary. (ii) A certificate of the Secretary of the Company, Company dated the Closing Date, certifying thatDate and certifying: (iA) that attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors By-laws of the Company approving this Agreement and as in effect on the Merger (date of such resolutions to be in form and substance reasonably satisfactory to Parent)certification; (iiB) that attached thereto is a true and complete copy of all resolutions adopted by the holders Board of at least a majority Directors or the shareholders of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (authorizing the execution, delivery and performance of this Agreement, and that all such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as and are all the resolutions adopted in connection with the transactions contemplated by this Agreement; (C) that the Certificate of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries Incorporation of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion has not been amended since the date of the business or assets last amendment referred to in the certificate delivered pursuant to clause (i)(B) above; and (D) as to the incumbency and specimen signature of each officer of the Surviving Corporation Company executing this Agreement, and its Subsidiariesany certificate or instrument furnished pursuant hereto, taken as and a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion certification by another officer of the business or assets Company as to the incumbency and signature of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be officer signing the certificate referred to in effect. this clause (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(eii). (giii) The holders of no more than two percent Such additional supporting documents and other information with respect to the operations and affairs of the Company Shares on an as-converted to Common Stock basis shall have demanded as Parent and not lost Merger Sub or withdrawn, or shall be eligible to demand, appraisal rightstheir counsel reasonably may request. (h) The Chief Financial Officer Parent shall be satisfied, in its sole discretion after consultation with its counsel, that the approval of the Merger, this Agreement and all associated transactions by the Company Shareholders and the Secretary issuance of the Company Parent Common Stock hereunder shall have executed and delivered to Parent been conducted in compliance with the Allocation Certificate.Securities Act; (i) Alchemy Communications, Inc. The Company shall have entered into an agreement furnished Parent with a true and complete copy of the Company in form and substance satisfactory to Parent Annual Unaudited Financial Statements and the Company and containing a term of five (5) yearsUnaudited Interim Financial Statements. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly properly executed statement satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) in a form reasonably acceptable to Parent; (k) No change in the business, assets, condition (financial or otherwise) or results of operations of the Company shall have occurred since the date of this Agreement which individually or in the aggregate has resulted in, or will cause a Material Adverse Effect. (l) Holders of Outstanding Company Shares representing at least ninety-five percent (95%) of the voting power of Company Shares entitled to approve the Merger and the form of this Agreement shall have executed and certified FIRPTA Certificatedelivered the Company's Shareholders' Consent in favor of the transactions contemplated herein. (m) Each founder, Stefxxxx Xxxxx, xxch officer and key employee, and marketing technology employee of the Company shall have executed an Employee Non-Disclosure, Invention and Covenant Not to Compete Agreement in substantially the form of Exhibits F-1, F-2, F-3 and F-4, respectively. (n) The No employee or other option holder of the Company shall have delivered exercised any option to Parent resignations from the directors and officers purchase shares of the Company Company's capital stock after the date hereof and each Subsidiary of the Company in office immediately prior to the Effective TimeClosing. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (on or waiver by Parent in its sole discretion) prior to the Closing Date of the following further conditions:conditions (which may be waived in whole or in part by Parent): (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date (without regard to any qualification as if to materiality or Company Material Adverse Effect) as though made at and as of such time (or, in the Closing Date, except to the extent that such case of representations and warranties refer specifically to an earlier that address matters only as of a particular date, in which case as of such representations and warranties shall have been date), except for such failures to be true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have would not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company Material Adverse Effect, and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel certificate to the Company, addressed to Parent and Merger Sub, dated as such effect signed on behalf of the Closing Date, in a form reasonably acceptable to Parent Company by its chief executive officer and its counselchief financial officer. (mb) The Company shall have delivered performed or complied with, as applicable, all material obligations, agreements and covenants required by this Agreement to be performed or complied with by it, and Parent and Merger Sub shall have received a duly executed certificate to such effect signed on behalf of the Company by its chief executive officer and certified FIRPTA Certificatechief financial officer. (nc) The Company No statute, rule, regulation, judgment, order or injunction shall have delivered been promulgated, entered, enforced, enacted, issued or applicable to Parent resignations from the directors and officers Merger by any Governmental Entity which (1) requires an increase in the Merger Consideration, (2) prohibits, or imposes any limitations on, Parent’s or its subsidiaries’ (or Merger Sub’s) or affiliates’ ownership (or which imposes any limitations that would affect its or their operation) of any portion of their respective businesses or assets, (3) imposes any requirement to divest, hold separate or otherwise dispose of any portion of their respective businesses or assets, (4) prohibits or imposes any limitation on its or their ability to effect the Merger, or the ability of the Company and each Subsidiary (or Merger Sub) or its or their respective subsidiaries to acquire or hold or exercise full rights of ownership of any capital stock of any subsidiary of the Company or (5) imposes limitations on its or their ability to effectively control their respective businesses or any limitation which would affect its or their ability to control their respective operations, and no action or proceeding by any Governmental Entity shall be pending which seeks any of the results described in office immediately prior to the Effective Timeclauses (1) through (5). (od) The Company Parent shall have delivered received the opinion of Xxxxxx, Xxxxxx & Xxxxx LLP or, if such firm is unable to Parent certificates render such opinion, the opinion of good standing for the Company from the Secretary of State of the State of Delaware and CaliforniaSkadden, each Arps, Slate, Xxxxxxx & Xxxx LLP, dated a reasonable date prior to the Closing Date, based on appropriate representations of the Company, its affiliates, and certificates Parent, and such other facts, representations, assumptions, and agreements as counsel may reasonably deem relevant, to the effect that for United States Federal income tax purposes (1) the Merger will qualify as a reorganization within the meaning of good standing for Section 368 of the Subsidiaries Code; (2) each of Parent and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code; and (3) the Merger will qualify as a complete liquidation of the Company from within the applicable Governmental Entities in each such Subsidiary’s jurisdiction meaning of organizationSection 332 of the Code.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (or waiver by Parent in its sole discretion) at or prior to the Closing, of the following further conditions: (a) (i) The representations and warranties of the Company set forth contained in this Agreement shall have been true and correct in all material respects at and as of any certificate or other writing delivered by the date hereof and Company pursuant hereto that are qualified by materiality or Material Adverse Effect shall be true and correct in all material respects at both as of the date of this Agreement and as of the Closing Date as if though made at on and as of the Closing Date, Date (except to the extent that such representations and warranties refer specifically expressly relate to an earlier date, in which case such representations and warranties shall have been be true and correct in all respects on and as of such earlier date) and (ii) the representations and warranties of the Company in this Agreement and in any certificate or other writing delivered by the Company pursuant hereto that are not so qualified shall be true and correct in all material respects both as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect.); (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect.; (c) The Company shall have taken all corporate action necessary delivered to approve Parent a certificate, signed by the transactions contemplated by this Agreement. The Company shall have furnished Parent chief executive officer and Merger Sub with a certificate of the Secretary chief financial officer of the Company, to the effect that each of the conditions specified in (a) and (b) above is satisfied; (d) Parent shall have received a written opinion from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to Parent, dated as of the Closing Date, certifying that: (ito the effect that the Merger will qualify as a reorganization under Section 368(a) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement Code. Such counsel shall be entitled to rely upon representation letters from each of the Company, Parent, Merger Sub and the Merger (such resolutions to be others, in each case, in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to counsel. Each such representation letter shall be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect dated as of the Closing Date.date of such opinion. The opinion condition referred to in this Section 6.2(d) shall not be waivable after receipt of the Parent Stockholder Approval, unless further approval of the stockholders of Parent is obtained with appropriate disclosure; (de) The total number of Dissenting Shares shall not exceed 10% of the issued and outstanding shares of Company Common Stock as of the Effective Time, and Parent shall have received a certificate to such effect signed by the chief executive officer and chief financial officer of the Company; (f) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending any suit, action or threatened before proceeding by any court or other Governmental Entity seeking to prohibit or before impose any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries material limitations on Parent’s ownership of the Company or (iii) restrain or prohibit Parent’s ownership or the operation (or that of its Subsidiaries or Affiliates) of all or a material portion of Parent’s or the Company’s businesses or assets (whether held directly or through Subsidiaries), or to compel Parent or the Company or any of their respective Subsidiaries to dispose of or hold separate any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or the Company (whether held directly or through Subsidiaries) in any such case which is reasonably likely to have a Parent Material Adverse Effect (determined, for purposes of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiariesthis clause, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable after giving effect to the Merger which has any of the effects set forth in clauses (iMerger) through (iii) in Section 8.2(e).or a Company Material Adverse Effect; and (g) The holders Since the date of no more than two percent of this Agreement there shall not have been any occurrence, event, change, effect or development that, individually or in the aggregate, has had or is reasonably expected to have a Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rightsMaterial Adverse Effect. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (on or waiver by Parent in its sole discretion) prior to the Closing Date of each of the following further conditions:conditions (any or all of which may be waived by Parent and Merger Sub in writing, in whole or in part, to the extent permitted by applicable Law): (a) The representations and warranties of the Company set forth in Sections 3.7 and 3.9(i) of this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, as if made at and as of such date. The representations and warranties of the Company set forth in Section 3.3 of this Agreement shall be true and correct in all respects (except for any de minimis inaccuracies therein) at and as of the Closing Date, as if made at and as of such date (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case as of such date). The representations and warranties of the Company set forth in Article III of this Agreement, other than Sections 3.3, 3.7 and 3.9(i), shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) 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), except where the failure of such representations and warranties shall have been to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in all material respects as of such earlier datethe aggregate has not had, and Parent shall could not reasonably be expected to have received or result in, a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing DateMaterial Adverse Effect. Parent shall have received a certificate signed on behalf of the Company by the President each of two senior executive officers of the Company to such the foregoing effect.; (cb) The Company shall have taken performed or complied with in all corporate action necessary material respects each of its obligations under this Agreement required to approve be performed or complied with by it at or prior to the transactions contemplated by Closing Date pursuant to the terms of this Agreement. The Company , and Parent shall have furnished Parent and Merger Sub with received a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors signed on behalf of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy by each of resolutions adopted by the holders of at least a majority two senior executive officers of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date.foregoing effect; (dc) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending any suit, action or threatened before proceeding, in each case, by any court or other Governmental Entity seeking to prohibit or before limit in any other Person wherein an unfavorable Order would (i) prevent consummation of material respect the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (by the Company, Parent or that Merger Sub or any of its Subsidiaries or Affiliates) their respective affiliates of all or any material portion of the business or assets of the Surviving Corporation Company and its Subsidiaries, taken as a whole, or compel Parent or to require any of its Subsidiaries or Affiliates such Person to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation Company and its Subsidiaries, taken as a wholeresult of the Merger or any of the other transactions contemplated by this Agreement; (d) Parent shall have received the opinion of Xxxxx Xxxxx L.L.P., or counsel to Parent, in form and substance reasonably satisfactory to Parent, dated the Closing Date, rendered on the basis of Parent facts, representations and its Subsidiariesassumptions set forth in such opinion and the certificates obtained from officers of Parent, taken Merger Sub and the Company, all of which are consistent with the state of facts existing as of the Effective Time, to the effect that the Merger will qualify as a wholereorganization within the meaning of Section 368(a) of the Code. No such Order In rendering the opinion described in this Section 6.3(d), Xxxxx Xxxxx L.L.P. shall be have received and may rely upon the certificates and representations referred to in effect.Section 5.12(b) hereof; (e) Since the date of this Agreement, there shall not have been any Material Adverse Effect with respect to the Company that has occurred and is continuing. Parent shall have received a certificate signed on behalf of the Company by a duly authorized officer of the Company certifying as to the satisfaction of the conditions specified in the preceding sentence; (f) No Law The number of Appraisal Shares for which demands for appraisal have not been withdrawn shall have been enacted or shall be deemed applicable to the Merger which has any not exceed 10% of the effects set forth in clauses (i) through (iii) in Section 8.2(e).outstanding shares of Company Common Stock; and (g) The holders of no more than two percent None of the Company Shares individuals indentified on an as-converted to Common Stock basis Schedule 6.3(g) of the Parent Disclosure Letter shall have demanded and not lost ceased to be employed by the Company or withdrawnone of its Subsidiaries, as the case may be, or shall be eligible have expressed any intention to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement terminate his or her employment with the Company or such Subsidiary or decline to accept employment with Parent or any of its Subsidiaries, in form and substance satisfactory to Parent and the Company and containing each case other than as a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% result of the shares death or incapacity due to mental or physical illness (which is determined to be total and permanent by a physician selected by Parent) of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreementone, but not more than one, of such individuals. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction fulfillment (or waiver in writing by Parent in its sole discretionParent, if permissible under applicable Law) of the following further conditions: (a) The (i) the representations and warranties of the Company (other than Section 3.1(a), Section 3.2(a), Section 3.2(d), Section 3.3, Section 3.19 and Section 3.20) set forth in Article 3 shall be true and correct as of the date hereof and as of the Closing Date as if made on each such date (except to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date) without regard to “materially” or “material” or to any qualifications based on such terms or based on the term “Company Material Adverse Effect”, except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, (ii) the representations and warranties of the Company set forth in this Agreement Section 3.2(a) shall have been be true and correct in all material respects at and (other than for inaccuracies that are de minimis relative to the total fully-diluted equity capitalization of the Company) as of the date hereof and as of the Closing Date as if made on each such date (except to the extent any such representation or warranty expressly relates to an earlier date, in which case as of such date) and (iii) the representations and warranties of the Company set forth in Section 3.1(a), Section 3.2(d), Section 3.3, Section 3.19 and Section 3.20 shall be true and correct in all material respects at as of the date hereof and as of the Closing Date as if made at and as of the Closing Date, on each such date (except to the extent that any such representations and warranties refer specifically representation or warranty expressly relates to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such 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 Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effectEffective Time. (c) The Since the date hereof, no Company Material Adverse Effect shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto occurred that is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Datecontinuing. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed certificate, dated the Closing Date and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior signed by its chief executive officer or another senior officer, certifying to the Effective Timeeffect that the conditions set forth in Sections 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations respective obligation of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (fulfillment or waiver by Parent in its sole discretion) at or prior to the Effective Time of the following further conditions: (ai) The representations and warranties of the Company set forth in this Agreement (A) Sections 4.2, 4.18, 4.22, the third sentence of Section 4.10 and the first sentence of Section 4.19 shall have been be true and correct in all material respects at and as of the date hereof of this Agreement and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, Date (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date), (B) Section 4.3 shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except for de minimis inaccuracies and (C) any other Section of this Agreement shall be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifiers) at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties referred to in this clause (C) to be so true and correct does not constitute, individually or in the aggregate, a Company Material Adverse Effect, and (ii) Parent shall have received at the Closing a certificate dated the Closing Date signed on behalf of the Company by the President a senior executive officer of the Company to such effectthe effect that the conditions set forth in this Section 7.2(a)(i) have been satisfied. (b) The Company shall have performed in all material respects all each of its obligations required to be performed by it under this Agreement at or prior to the Closing Date. , and Parent shall have received a certificate signed on behalf of the Company by the President a senior executive officer of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The Unless waived by Parent and Merger Sub, the obligations of Parent and Merger Sub to effect the Merger are shall be subject to the satisfaction (fulfillment at or waiver by Parent in its sole discretion) prior to the Effective Time of the additional following further conditions: (a) The the Company shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) its agreements contained in this Agreement required to be performed on or prior to the Closing Date; (b) the representations and warranties of the Company set forth contained in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at (or in all respects in the case of any representation or warranty containing any materiality qualification) on and as of the date made and on and as of the Closing Date as if made at and as of such date; (c) since the date hereof, there shall have been no changes that constitute, and no event or events shall have occurred which have resulted in or constitute, a Material Adverse Effect; (d) all governmental waivers, consents, orders, permit transfers (including without limitation Environmental Permits) and approvals legally required for the consummation of the Merger and the transactions contemplated hereby or to permit Parent to carry on the business of the Company after Closing in accordance with past customs and practice shall have been obtained and be in effect at the Closing Date, except and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value of the Company to Parent; (e) all waivers, consents and approvals from third parties necessary for the transfer of any material contracts, financial assurances and any other rights and benefits in connection with the Merger, or necessary for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date; (f) all transactions, contracts, agreements and guarantees between the Company and any Shareholder or any Affiliate of the Company or any Shareholder shall have been terminated and all amounts owed by the Shareholders and their Affiliates to the extent that Company shall have been paid in full; (g) the Company shall have distributed the building and real property located at 315 Xxxxx Xxxx, Mocksville, North Carolina to Gracx Xxxxxx, Xxacx Xxxxxx xxxll have assumed all indebtedness with respect thereto and the Company shall have entered into new long-term real property leases with respect to such facility and any real property and other properties owned by any Shareholder or any of their Affiliates and used in the business of the Company in form and upon terms satisfactory to Parent; provided, however, in no event shall such lease payments under such leases exceed the aggregate amount paid for such properties under current leases; (h) the Company shall have minimum tangible net worth at Closing shall be $2,450,000. (i) the officers and directors of the Company shall deliver to Parent an instrument dated the Closing Date releasing the Company from any and all claims of such officers and directors (except as to accrued compensation prior to the Closing Date in accordance with the terms of the Agreement); (j) Parent shall have completed its due diligence review regarding the Company and its business, operations, assets, liabilities, taxes, insurance, contracts, prospects and environmental and other matters as Parent deems relevant and Parent shall not have discussed any condition with respect to such matters materially and adversely different from the representations and warranties refer specifically to an earlier datein Article V hereof; (k) the Board of Directors of Parent shall approve this Agreement and the closing of the transactions contemplated herein; (l) Parent shall have received a legal opinion from Wombxx Xxxlxxx Xxxxxxxxx & Xice, XXLC, in which case such representations form reasonably satisfactory to Parent; (m) Gracx X. Xxxxxx xxxll have entered into a Consulting Agreement in the form attached hereto as Exhibit B, and warranties a Covenant Not to Compete Agreement in the form attached hereto as Exhibit C. Gracx X. Xxxxxx'x Xxxsulting Agreement shall be for an initial term of two years and require full time involvement for the six month period after Closing with annual compensation of $120,000 during the first year and $100,000 during the second year. (n) Dennxx Xxxxxx xxxll have entered into a Covenant Not to Compete Agreement in the form attached hereto as Exhibit D; (o) Gracx Xxxxxx xxxll have purchased the Winnebago RV for the Company's book value and shall have been true assumed all debt and correct in all material respects as of lease obligations with respect to such earlier date, Winnebago RV and the Jaguar automobile lease; and (p) Parent shall have received a certificate dated the Closing Date signed executed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Executive Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior Shareholders with respect to the Effective Time(a) through (h) above. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The Solely if the Offer Termination shall have occurred or the Acceptance Time shall not have occurred, in addition to the conditions set forth in Section 8.1, the obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction or (to the extent permissible by Law) waiver at or waiver by Parent in its sole discretion) prior to the Effective Time, of each of the following further conditions: (a) The any waiting period under the HSR Act applicable to the Transactions shall have expired or been terminated; (b) there shall not (i) be any statute, rule, regulation, executive order, decree, ruling, judgment, decision, order, request or injunction enacted, entered, promulgated, issued, communicated or enforced by any Governmental Entity that is in effect and has the effect, directly or indirectly, of (A) prohibiting or enjoining or (B) prohibiting or materially limiting the ownership or operation by Parent, the Company or any of their Subsidiaries of any portion of any business or any assets of Parent, the Company or any of their Subsidiaries as a result of or in connection with any of the Transactions or (ii) exist or be instituted or pending any claim, suit, action or proceeding by any Governmental Entity of competent jurisdiction seeking any of the consequences referred to in the immediately prior clause (i); (c) (A)(1) the representations and warranties of the Company set forth in Section 5.2 (Capitalization) shall be true and correct in all material respects; (2) the representations and warranties of the Company set forth in the first sentence of Section 5.1 (Organization and Qualification) or in Section 5.4 (Authority; Non-Contravention; Approval), Section 5.20 (Anti-Takeover Law Inapplicable), Section 5.23 (Advisors’ Fees), Section 5.27 (No Rights Agreement) or Section 5.28 (Rule 14d-10 Matters) that are qualified as to materiality or Material Adverse Effect shall be true and correct in all respects, and any such representations or warranties that are not so qualified shall be true and correct in all material respects; and (3) the representations and warranties of the Company set forth in this Agreement (other than those sections listed in the preceding clauses (1) and (2)) shall have been be true and correct, except in the case of this clause (3) to the extent that the facts or matters as to which such representations and warranties are not so true and correct (without giving effect to any qualifications and limitations as to “materiality” or “Material Adverse Effect” set forth therein, except that such qualifications and limitations as to “materiality” or “Material Adverse Effect” will be given effect in all material respects at subsections (a)(ii), (b), and (d)(ii), and the first reference to the word “material” in the last sentence of subsection (c), of Section 5.5 (SEC Matters; Financial Statements), Section 5.6 (Disclosure Documents), Section 5.7 (Absence of Undisclosed Liabilities), Section 5.8 (Absence of Certain Changes or Events), Section 5.12 (Taxes), the first sentence of subsection (b) of Section 5.15 (Real Estate), the references to the word “material” in Section 5.16 (Properties), subsections (a)(vii), (a)(ix), (a)(x), (a)(xii), (b) and (d) of Section 5.18 (Contracts and Commitments; Suppliers and Customers), subsections (a), (b) and (c) of Section 5.19 (Intellectual Property Rights), subsections (a) and (o) of Section 5.21 (Government Contracts) and the first sentence of Section 5.26 (Insurance)), individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, in each case with respect to the foregoing clauses (1), (2) and (3), as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date Date, with the same effect as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, address matters only as of another specified time (in which case on and as of such representations and warranties specified time, but without giving effect to the “as of the date hereof” reference in the preamble to Article 5), (B) the Company shall have been true and correct performed or complied in all material respects as of such earlier date, with its covenants and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President of the Company to such effect. (b) The Company shall have performed obligations contained in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and (C) since the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy date of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There this Agreement, there shall not have occurred and there shall not exist any eventcondition, occurrence occurrence, development, change, circumstance, fact, event or change that has had, or could reasonably be expected to haveeffect that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole.Material Adverse Effect; and (ed) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to certificate of the Company, addressed to Parent executed by the chief executive officer and Merger Subthe chief financial officer of the Company, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Timeeffect that the conditions set forth in clauses (A) and (B) of Section 8.2(c) have been satisfied. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are shall be further subject to the satisfaction (fulfillment at or waiver prior to the Effective Time of the following conditions, except as may be waived by Parent in its sole discretion) of the following further conditionswriting pursuant to Section 7.5: (a) VitalStream shall have performed in all Material respects its agreements and covenants contained in or contemplated by this Agreement required to be performed at or prior to the Effective Time; (b) The representations and warranties of the Company VitalStream set forth in this Agreement shall have been be true and correct in all material respects at and as of the date hereof Agreement Date and, except as expressly contemplated or permitted by this Agreement or consented to be Parent in writing, the representations and warranties of VitalStream set forth in this Agreement shall be true and correct in all material respects at and as of the Closing Date as if made at Effective Time (with the term "Effective Time" being substituted for "Agreement Date" throughout Article III). (c) Parent shall have received a certificate ("VitalStream's Bringdown Certificate") signed by the President and as Chief Executive Officer and the Chief Financial Officer of VitalStream dated the date of the Closing Datecertifying that, except as expressly set forth in VitalStream's Bringdown Certificate or an attachment thereto, the conditions set forth in Section 6.3(a) and (b) with respect to the extent that such representations company of which he/she is an executive officer have been satisfied. (d) All consents, authorizations, orders and warranties refer specifically to an earlier dateapprovals of (or filings or registrations with) any Governmental Entity required in connection with the execution, in which case such representations delivery and warranties performance of this Agreement by VitalStream shall have been true obtained or made. All consents required from third parties in order for VitalStream to consummate the Merger, including the consents identified on Part 3.6 of the VITALSTREAM DISCLOSURE SCHEDULE, shall have been obtained. (e) All action required to be taken by or on the part of VitalStream to authorize the execution, delivery and correct in all material respects as performance of such earlier datethis Agreement and the consummation of the transactions contemplated hereby shall have been duly and validly taken by the Board of Directors and Shareholders of VitalStream, and Parent shall have received a certificate dated the Closing Date signed on behalf certified copies of the Company resolutions evidencing such authorization; (f) Parent shall have received from Hill, Xxxxxx & Xxxxxxx LLP, counsel to VitalStream, an opinion in the form mutually agreed upon by the President counsel for Parent and counsel for VitalStream, addressed to Parent and dated as of the Company to such effect.Closing; (bg) The Company shall have performed in all material respects all obligations required With respect to be performed by it under this Agreement each Option that will not terminate at or prior to the Closing Date. Effective time, Parent shall have received a certificate signed on behalf duly executed Option Exchange Agreement from the holder of the Company by the President of the Company to such effectOption. (ch) The Company Parent shall have taken received a duly executed counterpart to, and executed, a Shareholder Questionnaire and Subscription Agreement in the form approved by Parent from each of the Shareholders and shall be satisfied, in its reasonable discretion, that all corporate action necessary to approve of the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub Shareholders are, either alone or with a certificate Purchasers Representative, qualified to receive Parent Common Shares in a transaction exempt from the registration requirements of the Secretary of the Company, dated the Closing Date, certifying that: Securities Act; (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two five percent (5%) of VitalStream Common Shares outstanding at the record date for the Meeting shall have exercised dissenters or appraisal rights under Delaware Law as of the Company last date upon which a holder of VitalStream Common Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawncould assert such rights; provided, or however, that this condition shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and deemed satisfied if the holders of not less more than 95% of VitalStream Common Shares outstanding at the shares of Company Common Stock outstanding immediately prior to record date for the Effective Time Meeting shall have duly executed and delivered voted in favor of the Merger or otherwise waived their right to Parent the Stockholders’ Representative Agreement.exercise dissenters or appraisal rights; (lj) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Subcertificate, dated as of the Closing DateDate and signed by the Secretary of VitalStream certifying the truth and correctness of copies of VitalStream's Organizational Documents (including all amendments thereto), in a form reasonably acceptable to Parent and its counsel.incumbency; (mk) The Company VitalStream shall have delivered to Parent a duly executed the 2001 Audited VitalStream Financial Statements and certified FIRPTA the Financial Statements Certificate. (n) The Company , and the shareholders equity, net assets, net loss and current assets numbers in such 2001 Audited VitalStream Financial Statements shall have delivered to Parent resignations not differ from the directors shareholders equity, net assets, net loss and officers current assets numbers in the Unaudited VitalStream Financial Statements for the year ended December 31, 2001 by more than 5% (excluding the effect, if any, of any changes from the numbers in the Unaudited VitalStream Financial Statements for the year ended December 31, 2001 to the 2001 Audited VitalStream Financial Statements attributable to the goodwill and employment compensation related to option/warrant grants issues described in Part 3.5(a) of the Company and each Subsidiary of the Company in office immediately prior to the Effective TimeVITALSTREAM DISCLOSURE SCHEDULE. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (or waiver by Parent in its sole discretion) at or prior to the Effective Time of the following further conditions: (ai) The representations and warranties of the Company set forth in this Agreement shall have been true Sections 3.2 and correct in all material respects at and as of the date hereof and 3.3 shall be true and correct in all material respects at (except in the case of Section 3.2(a) for such inaccuracies as are de minimis in the aggregate) both when made and as of the Closing Date as if made at and as of the Closing Date, as if made at and as of such time (except to the extent that such representations and warranties refer specifically to expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties described in clause (i) above) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein, except, for the avoidance of doubt, Section 3.7) both when made and 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), except where the failure of such representations and warranties shall have been to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein, except, for the avoidance of doubt, Section 3.7) individually or in all material respects as of such earlier datethe aggregate does not have, and is not reasonably likely to have or result in, a Company Material Adverse Effect. Parent and Merger Sub shall have received a certificate dated the Closing Date signed on behalf of the Company by the President Chief Executive Officer and the Chief Financial Officer of the Company to such the foregoing effect.; (b) The Company shall have performed in all material respects all each of its obligations under this Agreement required to be performed by it under this Agreement at or prior to the Closing Date. Effective Time pursuant to the terms of this Agreement, and Parent and Merger Sub shall have received a certificate signed on behalf of the Company by the President of the Company Chief Executive Officer or Chief Financial Officer to such effect.; (c) The Company There shall have taken all corporate not be pending any suit, action necessary or proceeding by any Governmental Entity seeking to approve (i) prohibit or limit in any material respect the transactions contemplated ownership or operation by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated Parent, Merger Sub, the Closing Date, certifying that: (i) attached thereto is Surviving Corporation or any of their respective affiliates of a true and complete copy of resolutions adopted unanimously by the Board of Directors substantial portion of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy business or assets of resolutions adopted by the holders of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries Subsidiaries, taken as a whole. (e) No Action shall be pending , or threatened before to require any court such Person to dispose of or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or hold separate any material portion of the business or assets of the Surviving Corporation Company and its Subsidiaries, taken as a whole, or compel Parent as a result of the Merger or any of its Subsidiaries the other transactions contemplated hereby or Affiliates to dispose of (ii) restrain, preclude, enjoin or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to prohibit the Merger which has or any of the effects set forth in clauses (i) through (iii) in Section 8.2(e).other transactions contemplated hereby; and (gd) The holders of no more than two percent of the There shall not have been and be continuing a Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rightsMaterial Adverse Effect. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (n) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (o) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at respects, with respect to representations and warranties not qualified by materiality, or in all respects, with respect to representations and warranties qualified by materiality, as of the date of this Agreement and as of the Closing Date as if though made at on and as of the Closing Date, except to the extent that such representations and warranties refer specifically expressly relate to an earlier a particular date, in which case such representations and warranties shall have been be so true and correct in all material respects as of such earlier dateparticular date and for changes in such representations and warranties contemplated or permitted by this Agreement, and except further to the extent that any such failure to be true and correct is not material to the Company and its Subsidiaries, taken as a whole. For these purposes, representations and warranties referring to a Material Tax Return, a Material Amount of Tax, a Material Amount of Income or a Material Amount of Reduction shall be treated as representations and warranties qualified by materiality. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President an executive officer of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date; provided that, with respect to obligations that are qualified by materiality, the Company shall have performed such obligations, as so qualified, in all respects. Parent shall have received a certificate signed on behalf of the Company by the President an executive officer of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with (1) the CFO Certificate and (2) a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form Merger; and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted the written consent signed by the holders holder(s) of at least a majority of the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis (such resolutions to be in form adopting and substance reasonably satisfactory to Parent); approving this Agreement and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing DateMerger. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a wholeMaterial Adverse Effect. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole. No such Order shall be in effect. (f) No Law shall have been enacted or shall be deemed applicable to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e). (g) The holders of no more than two percent of the Company Shares on an as-converted to Common Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company in form and substance satisfactory to Parent and the Company and containing a term of five (5) years. (j) The Escrow Agent and the Stockholders’ Representative shall have duly executed and delivered the Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a form reasonably acceptable to Parent and its counsel. (m) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate. (nf) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time(other than those set forth on Schedule 5.4). (og) The Company shall have delivered to Parent certificates a duly executed pay off letter from Xxxxx Fargo Foothill, Inc. as administrative agent and collateral agent under the Loan and Security Agreement, dated as of December 29, 2003 (as amended), among the Company, International Mill Service, Inc. and the Lenders signatory thereto, which letter shall contain usual and customary provisions relating to the repayment of the loans made thereunder and the release of the liens granted thereunder. (h) The Company shall have delivered to Parent a certificate of good standing for the Company from the Secretary of State of the State of Delaware and CaliforniaDelaware, each dated a reasonable date prior to the Closing Date, and certificates of good standing for the Subsidiaries of the Company from the applicable Governmental Entities in each such Subsidiary’s jurisdiction Subsidiaries’ jurisdictions of organization.

Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction (or waiver by Parent in its sole discretion) of the following further conditions: (a) The representations and warranties of the Company set forth in this Agreement shall have been true and correct in all material respects at and as of the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the President Chief Executive Officer of the Company to such effect. (b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate signed on behalf of the Company by the President Chief Executive Officer of the Company to such effect. (c) The Company shall have taken all corporate action necessary to approve the transactions contemplated by this Agreement. The Company shall have furnished Parent and Merger Sub with a certificate of the Secretary of the Company, dated the Closing Date, certifying that: (i) attached thereto is a true and complete copy of resolutions adopted unanimously by the Board of Directors of the Company approving this Agreement and the Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); (ii) attached thereto is a true and complete copy of resolutions adopted by the holders of at least a majority of Stockholders adopting and approving this Agreement and the then outstanding Company Shares voting as a single class on an as-converted to Common Stock basis Merger (such resolutions to be in form and substance reasonably satisfactory to Parent); and (iii) that such resolutions have not been amended and are in full force and effect as of the Closing Date. (d) There shall not have occurred any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries taken as a whole. (e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of the Merger, (ii) affect adversely the right of Parent or its Affiliates to control the Company and the Subsidiaries of the Company or (iii) restrain or prohibit Parent’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Surviving Corporation and its Subsidiaries, taken as a whole, or compel Parent or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Surviving Corporation and its SubsidiariesCorporation, taken as a whole, or of Parent and its Subsidiaries, taken as a wholeParent. No such Order shall be in effect. (fe) No Law The Company shall have been enacted or shall be deemed applicable terminated its 401(k) plan on the day immediately prior to the Merger which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e)Closing. (gf) The holders of no more than two five percent (5%) percent of the Company Shares on an as-converted to Common Capital Stock basis shall have demanded and not lost or withdrawn, or shall be eligible to demand, appraisal rights. (g) The Company shall have obtained the consents set forth on Schedule 7.2(g). (h) The Chief Financial Officer and the Secretary of the Company shall have executed and delivered to Parent the Allocation Certificate. (i) Alchemy Communications, Inc. shall have entered into an agreement with the Company evidence in form and substance satisfactory to Parent and that the Contracts listed on Schedule 7.2(h) have been terminated. (i) No later than two (2) days prior to the Closing Date, the Company shall have delivered to Parent a statement setting forth the Estimated Adjusted Closing Cash and containing a term Estimated Closing Liabilities and shall provide all such support for the calculation of five (5) yearsEstimated Adjusted Closing Cash as Parent shall reasonably request. (j) The Indemnity Escrow Agent Agent, the Company and the Stockholders’ Representative shall have duly executed and delivered the Indemnity Escrow Agreement to Parent. (k) The Stockholders’ Representative and the holders of not less than 95% of the shares of Company Common Stock outstanding immediately prior to the Effective Time shall have duly executed and delivered to Parent the Stockholders’ Representative Agreement. (l) Parent and Merger Sub shall have received a written opinion from DLA Piper, counsel to the Company, addressed to Parent and Merger Sub, dated as of the Closing Date, in a the form reasonably acceptable to Parent and its counselattached as Exhibit D hereto. (ml) The Company shall have delivered to Parent a duly executed and certified FIRPTA Certificate for purposes of satisfying Parent’s obligations under Treasury Regulation Section 1.1445 2(c)(3) (the “FIRPTA Certificate”). (nm) The Company shall have delivered to Parent resignations from the directors and officers of the Company and each Subsidiary of the Company in office immediately prior to the Effective Time. (n) The individuals set forth in Schedule C hereto shall have executed consulting agreements with the Parent as of the date of this Agreement. (o) The Company shall have filed its 2012 Federal and California income Tax Returns. (p) The Company shall have delivered to Parent certificates of good standing for the Company from the Secretary of State of the State of Delaware and California, each dated a reasonable date no more than five (5) Business Days prior to the Closing Date. (q) The Company shall have prepared and delivered a notice, and certificates of good standing for the Subsidiaries in a form acceptable to Parent, to each Stockholder who is entitled to appraisal rights under Section 262 of the DGCL or dissenters’ rights under Chapter 13 of the California Corporations Code. (r) The Company from shall have filed the applicable Governmental Entities Certificate of Amendment with the Secretary of State of the State of Delaware and furnished to Parent a copy of such Certificate of Amendment as certified by such Secretary of State. (s) The Company shall have terminated the Company Stock Option Plan. (t) All outstanding warrants to purchase the Company Capital Stock shall have terminated. (u) The Company shall have obtained the Required Company Stockholder Vote. (v) Each of the Stockholders listed on Schedule 5.5 shall have executed and delivered a Company Stockholder Agreement. (w) Each of the Stockholders listed on Schedule 7.2(w) shall have executed and delivered a Stockholder Representation Statement in each such Subsidiary’s jurisdiction of organization.the form attached hereto as Exhibit E.