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

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger shall be subject to the fulfillment or written waiver by Parent or Merger Sub, at or prior to the Closing, of each of the following conditions: (a) The representations and warranties of the Company set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a); (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or prior to the Closing Date; (c) The company shall have delivered to Parent and Merger Sub a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Shares.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be are further subject to the fulfillment or written waiver satisfaction (or, to the extent permitted by Parent or Merger SubLaw, at waiver) on or prior to the Closing, of each Closing Date of the following conditions: (a) The (i) the representations and warranties of Weyerhaeuser and WRECO set forth in Sections 7.01(a), 7.03 and 7.04 shall be true and correct, as of the Company Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date), and (ii) all other representations and warranties of Weyerhaeuser and WRECO set out forth in this Agreement shall be true and correct in correct, disregarding all material respects at qualifications or limitations as to “materiality”, “REB Material Adverse Effect” and words of similar import set forth therein, as of the time of Closing Date as though made on the Closing as though Date, except to the extent such representations and warranties were made at expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such timeearlier date), except except, in the case of this clause (ii), for any failure to be true and correct that would not, individually or in the representations and warranties set forth in Section 3.5 shall aggregate, reasonably be updated as provided in Section 5.15(a)expected to have an REB Material Adverse Effect; (b) The Company each of Weyerhaeuser and the Principal Shareholder WRECO shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing Date; (c) The company Parent shall have received certificates signed on behalf of each of Weyerhaeuser and WRECO by an executive officer of Weyerhaeuser and WRECO, respectively, certifying the satisfaction by Weyerhaeuser and WRECO, respectively, of the conditions set forth in Sections 10.03(a) and 10.03(b); (d) since the date hereof there shall not have been any Effect that, individually or in the aggregate, has had or would reasonably be expected to have an REB Material Adverse Effect; (e) Weyerhaeuser and WRECO shall have executed and delivered to Parent and Merger Sub a certificate each of the Secretary other Transaction Documents to which Weyerhaeuser or WRECO (or any of the Company and the Principal Shareholder their respective Subsidiaries) is a party; and (f) Parent shall have received a written opinion from Xxxxxx, Xxxx & Xxxxxxxx LLP to the effect that the conditions set forth in Merger will qualify as a tax-free reorganization under Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records 368 of the Company Code (the “Parent Merger Tax Opinion”); it being understood that in rendering such opinion such counsel shall be of such quality that, in entitled to rely upon customary representations and covenants provided by the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Sharesrelevant parties.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be further subject to the fulfillment satisfaction or written waiver by Parent or Merger Sub, at or prior to the Closing, of each Effective Time of the following conditions: (a) The representations and warranties of the Company set out forth in this Agreement shall be true and correct in all material respects at as of the date hereof and as of the time of the Closing Effective Time as though such representations and warranties were made at on and as of such timedate (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct only as of such specified date), interpreted without giving effect to any “material”, “materially”, “in all material respects”, “Material Adverse Effect” or similar qualifications contained therein or with respect thereto, except that the representations and warranties set forth in Section 3.5 3.3 (Capitalization) shall be updated true in all respects as provided of the date hereof and as of the Effective Time as though made on and as of such date, interpreted without giving effect to any “material”, “materially”, “in Section 5.15(a)all material respects”, “Material Adverse Effect” or similar qualifications contained therein or with respect thereto; (b) The Company and the Principal Shareholder shall have performed in all material respects the obligations, and complied in all material respects with all the agreements and covenants, conditions, obligations and agreements required by this Agreement to be performed by, or complied with by the Company or the Principal Shareholder on by, it under this Agreement at or prior to the Closing DateEffective Time; (c) The company Parent shall have delivered to Parent and Merger Sub received a certificate of the Secretary Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(asubsections (a) and (b) hereof of this Section 7.2 have been satisfied; (d) Parent shall have received a certificate of the Chief Executive Officer or the Chief Financial Officer of the Company, setting forth and certifying on behalf of the Company (i) the Effective Date Aggregate Merger Consideration, and the components thereof, (ii) the resulting Effective Date Per Share Merger Consideration to be paid to each stockholder of the Company pursuant to the Merger, (iii) the aggregate amount of Option Consideration, and (iv) the amount of Option Consideration to be paid to each Option holder of the Company pursuant to the Option Cancellation Agreements, in form and substance reasonably satisfactory to Parent; (e) Parent shall have received certified copies of the resolutions of the Company’s stockholders and board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby; (f) Parent shall have received good standing certificates for the Company and its Subsidiaries from their respective jurisdictions of formation and each jurisdiction in which they qualified to do business as a foreign corporation, in each case dated as of a recent date prior to or on the Closing Date; (g) Parent shall have received all third-party consents and approvals that are necessary (i) for the consummation of the transactions contemplated hereby or (ii) to prevent a breach of or default under, or a termination, modification or acceleration of, any instrument, contract, lease, license or other agreement marked with an asterisk on Section 3.5 of the Company Disclosure Schedule (collectively, the “Third-Party Approvals”), in each case on terms reasonably satisfactory to Parent; (h) Parent shall have received from Husch Xxxxxxxxx Xxxxxxx LLP, counsel for the Company, an opinion in form and substance reasonably satisfactory to Parent, which shall be addressed to Parent and the Surviving Corporation’s lender(s), dated as of the Closing Date, and in form and substance reasonably satisfactory to Parent and the Surviving Corporation’s lender(s); (i) Parent shall have received from Morris, Nichols, Arsht & Xxxxxxx LLP, special counsel for the Company, an opinion in form and substance reasonably satisfactory to Parent, which shall be addressed to Parent and the Surviving Corporation’s lender(s), dated as of the Closing Date, and in form and substance reasonably satisfactory to Parent and the Surviving Corporation’s lender(s); (j) Parent shall have received evidence that the Company’s stockholders shall have surrendered their Company Common Stock and submitted a Letter of Transmittal and all necessary assignment documents with respect to their Company Common Stock (whether certificated or in book entry form) to the Paying Agent, and such other documents reasonably requested by Parent, and there shall be no Dissenting Shares; (k) All Option holders of the Company shall have duly executed and delivered Option Cancellation Agreements, and such Option Cancellation Agreements shall be in full force and effect, pursuant to which all Options shall be cancelled and of no further force or effect as of the Effective Time; (l) Parent shall have received resignations from each of the members of the boards of directors of the Company and its Subsidiaries; (m) Buyer shall have received evidence (in form and substance satisfactory to Buyer) that the Company Transaction Expenses have been paid in full and that none of the Company or its Subsidiaries have any liability to the Surviving Corporation or its Subsidiaries’ legal counsel, investment bankers, brokers, agents or representatives, except for those Company Transaction Expenses set forth on Section 7.2(m) of the Company Disclosure Schedule; (n) The Company shall have obtained releases of all Encumbrances (other than any Permitted Encumbrances) relating to the assets and properties of the Company and its Subsidiaries, and the Company shall have obtained and delivered to Parent and the Surviving Corporation’s lender(s) payoff letters with respect to all Indebtedness and Revolver Indebtedness outstanding immediately prior to the Closing (in each case on terms and conditions satisfactory to Parent) other than with respect to capital leases, as well as UCC-3 termination statements, mortgage releases, terminations of landlord waivers, bailee waivers, account control agreements and any other documents required to evidence the Encumbrance releases, in each case in recordable form when reasonably required by Parent or the Surviving Corporation’s lender(s); (o) All Tax-sharing agreements or similar agreements with respect to or involving the Company or any of its subsidiaries shall be terminated as of the Closing Date and, after the Closing Date, the Company and its Subsidiaries shall not be bound thereby or have any liability thereunder; (p) Parent shall have received an affidavit, sworn under penalties of perjury, stating that the Company is not and has not been a United States real property holding corporation, dated as of the Closing Date and in the form and substance required under Treasury Regulation §1.897-2(h) so that Parent is exempt from withholding any portion of the purchase price thereunder; (q) The Company or the Stockholders, as applicable, shall have taken all reasonably necessary steps to provide for the transfer of the incentive Tax credits and Tax exemptions negotiated with the Nebraska Department of Revenue pursuant to the Nebraska Employment and Investment Growth Act (or any similar state or local Tax incentives) (the “Tax Incentives”) from the Company to Parent, or, in the alternative, the full retention of such Tax Incentives by the Surviving Company accruing after the Closing Date or carried forward from a Pre-Closing Tax Period; (r) Parent shall have received the Significant Stockholders Agreement in the form attached hereto as Exhibit E (the “Significant Stockholders Agreement”) duly executed by each of the Significant Stockholders; (s) Since the date hereof, there shall have been no Material Adverse Effect; (t) Parent shall have received Non Disturbance and Attornment Agreements from each of the primary landlords with respect to Leased Real Property other than Store #25 (Ellisville) (provided that a landlord consent with respect to Store #25 shall still be required) that is subleased to the Company, each in form and substance reasonably satisfactory to Parent; (u) Parent shall have received current title insurance policies and ALTA surveys with respect to the Owned Real Property in form and substance reasonably satisfactory to Parent; and (v) Parent shall have received such other documents or instruments as are required to be delivered by the Company at the Closing pursuant to the terms hereof or that Parent reasonably requests on or prior to the Closing Date to effect the transactions contemplated hereby; (w) Parent shall have received evidence of cancellation of the 500,000 shares of restricted stock held by Xxxxxxx Xxxxxx in form and substance reasonably satisfactory to Parent; (x) Parent shall have received evidence of the amendment of the Retention Agreement to which Xxxxxxx Xxxxxx is a party clarifying the amount Xxxxxxx Xxxxxx is to receive as a change of control bonus (i.e. the value of 100,000 shares of common stock) in form and substance reasonably satisfactory to Parent; (y) Parent shall have received a copy of the Paying Agent Agreement in the form attached hereto as Exhibit I (the “Paying Agent Agreement”) duly executed by Parent, the Company and the Paying Agent; and (z) The Company shall have delivered to Parent and Merger Sub any certificates evidencing reasonable evidence of all Pre-Closing Landlord Receivables, including the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Sharesamount thereof.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger transactions contemplated by this Agreement shall be subject to the fulfillment or written waiver by Parent or Merger SubParent’s waiver, at or prior to the Closing, of each of the following conditions: (a) The representations and warranties of the Company set out contained in this Agreement Agreement, the other Transaction Documents and any certificate delivered pursuant hereto, as applicable, shall be true and correct in all material respects at on and as of the time date hereof and as of the Closing Date, with the same effect as though such representations and warranties were made at and as of such time, date (except that the those representations and warranties set forth in Section 3.5 that address matters only as of a specified date, the accuracy of which shall be updated determined as provided of that specified date in Section 5.15(aall respects);. (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenantsagreements, conditions, obligations covenants and agreements conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by the Company or the Principal Shareholder on or prior to or as of the Closing Date;. (c) The company There shall not have delivered to Parent and Merger Sub a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied;occurred any Material Adverse Effect. (d) The At the Closing, the Company shall have delivered or caused to be delivered all of the agreements, instruments and documents required to be delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating pursuant to the Target Shares in accordance with 2.2(a)(i) & (iiSection 2.08(c);. (e) The GAAP Financial Statements and records As of the Company Closing Date, no Equityholders entitled to vote on the Merger shall be have provided notice of such quality that, in the judgment exercise of Parent in its sole and absolute discretion, an audit their dissenter’s rights under Section 262 of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations;DGCL. (f) Parent The Requisite Equityholder Approval shall be in full force and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion;effect. (g) The Target Shareholders shall Parent has determined in good faith that Closing may have approved the Merger in accordance with the NGCL; anda Material Adverse Effect. (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares Each Key Employee must not be Incapacitated. (i) The Company and its Subsidiaries’ Liabilities shall not exceed five percent Eight Mxxxxxx Xxx Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (5%$8,250,000) of in the aggregate number of outstanding Target Sharesaggregate.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Mxxxxx Sub to consummate the Merger shall be transactions contemplated by this Agreement is subject to the fulfillment satisfaction, or written the waiver in Parent’s sole and absolute discretion, of all the following further conditions: (a) The Company shall have duly performed or complied with, in all material respects, all of its covenants, agreements and obligations hereunder required to be performed or complied with (without giving effect to any “in all material respects” qualifiers contained therein) by Parent or Merger Sub, the Company at or prior to the Closing, of each of the following conditions:Closing Date. (ab) The representations and warranties of the Company set out contained in this Agreement shall be true and correct in all material respects at as of the date of this Agreement and as of the time of the Closing Date, as though such representations and warranties were if made at and as of such timedate (except to the extent that any such representation and warranty is made as of a specific date, except that the representations in which case such representation and warranties set forth in Section 3.5 warranty shall be updated true and correct at and as provided in Section 5.15(aof such specific date); (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or prior to the Closing Date;. (c) The company Since the date of this Agreement, there shall not have occurred and be continuing any Effect in respect of the Company Group that individually, or together with any other Effect, has had or would reasonably be expected to have a Material Adverse Effect on the Company. (d) Parent shall have delivered to received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company, in such Person’s capacity as an officer of the Company and not in such Person’s individual capacity, certifying the accuracy of the provisions of the foregoing clauses (a), (b), and (c) of this Section 9.2. (e) Parent and Merger Sub shall have received a certificate certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of: (i) the Company Articles of Incorporation, certified as of a recent date by the Secretary of State of the State of Nevada; (ii) the Company’s Bylaws; (iii) copies of resolutions duly adopted by the Board of Directors of the Company approving this Agreement, the Additional Agreements to which the Company is a party and the Principal Shareholder to transactions contemplated hereby and thereby and the effect that the conditions set forth in Section 6.2(a) Company Stockholder Written Consent; and (biv) hereof have been satisfied;a certificate of good standing of the Company, certified as of a recent date by the Secretary of State of the State of Nevada. (df) Each of the Company and the Company Securityholders, as applicable, shall have duly executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Securityholder, as applicable, is a party. (g) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating a duly executed certificate conforming to the Target Shares in accordance with 2.2(a)(irequirements of Sections 1.897-2(h)(1)(i) & (ii); (eand 1.1445-2(c)(3)(i) The GAAP Financial Statements and records of the Company shall United States Treasury regulations, and a notice to be of such quality that, in delivered to the judgment of Parent in its sole and absolute discretion, an audit United States Internal Revenue Service as required under Section 1.897-2(h)(2) of the Financial Statements can be completed within forty-five (45) United States Treasury regulations, each dated no more than 30 days after prior to the Closing Date and in accordance with applicable SEC rules form and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; andsubstance reasonable acceptable to Parent. (h) Immediately Not more than 5% of the issued and outstanding shares of Company Capital Stock shall constitute Dissenting Shares. (i) The Company shall have obtained each Company Consent set forth on Schedule 4.8. (j) The Company shall have delivered to Parent the financial statements required to be included in the Parent SEC Documents. (k) Each Company Securityholder set forth on Schedule 7.4(a) shall have entered into a Company Lock-Up Agreement with respect to such Company Securityholder’s Merger Consideration Shares. (l) The Company shall have entered into agreements or obtained the written consent of the holders of Company Warrants and shares of Company Preferred Stock outstanding immediately prior to Closingthe Effective Time, or the aggregate number holders of Dissenting Target Shares all such Company Warrants and shares of Company Preferred Stock shall not exceed five percent be obligated to comply with the terms of such an agreement or consent, in accordance with Section 7.5(a), Section 7.5(b), or Section 7.5(c), as applicable. (5%m) The Convertible Note shall have been amended to eliminate its conversion provisions or the holder thereof shall have irrevocably waived its ability to convert the Redemption Amount (as defined in the Convertible Note) into shares of Company Common Stock, with the effectiveness of such amendment or waiver contingent on and effective as of the aggregate number Effective Time. (n) Any regulatory approvals of outstanding Target Sharesthe Merger required by FINRA shall have been obtained.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be further subject to the fulfillment satisfaction (or written waiver by Parent or Merger Sub, Parent) at or prior to the Closing, of each Effective Time of the following conditions: (a) The the representations and warranties of the Company set out forth in this Agreement shall be true and correct in all material respects at (without giving effect to any “materiality,” “Material Adverse Effect” or similar qualifiers contained in any such representations and warranties) as of the time of the Closing Effective Time as though such representations and warranties were made at on and as of such timedate (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be so true and correct as of such specified date), except that where the failure of any such representations or warranties to be so true and warranties set forth correct, in Section 3.5 shall be updated as provided in Section 5.15(a)the aggregate, has not had and is not reasonably expected to have a Material Adverse Effect; (b) The the Company and the Principal Shareholder shall have performed in all material respects the obligations, and complied in all material respects with all the agreements and covenants, conditions, obligations and agreements required by this Agreement to be performed by, or complied with by the Company or the Principal Shareholder on by, it under this Agreement at or prior to the Closing DateEffective Time; (c) The company Parent shall have delivered to Parent and Merger Sub received a certificate of the Secretary Chief Executive Officer and the Chief Financial Officer of the Company and the Principal Shareholder to the effect Company, certifying that the conditions set forth in Section 6.2(a7.2(a) and (bSection 7.2(b) hereof have been satisfied; (d) The all material consents, waivers, licenses, variances, exemptions, franchises, permits, approvals and authorizations from parties to any contract or other agreement (including amendments and modifications thereto) with the Company or any subsidiary of the Company that may be required in connection with the performance by the Company of its obligations under this Agreement shall have delivered been obtained, excluding any and all consents that may be required under any mortgage or other agreement related to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii)such mortgage listed on Schedule 3.6; (e) The GAAP Financial Statements and records of Parent shall have closed the Company shall be of such quality that, Financing or will close the Financing concurrently with the Merger in the judgment principal amount of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulationsnot less than $31,100,000; (f) Parent and Merger Sub shall have completed a due diligence review not more than ten percent (10%) of the business, operations, financial condition and prospects of outstanding Common Stock immediately prior to the Company and Effective Time shall have been satisfied with the results of their due diligence review in their sole and absolute discretionconstitute Dissenting Shares; (g) The Target Shareholders Parent shall have approved received the Merger documents set forth on Schedule 7.2(g) of the Company Disclosure Schedule; (h) Parent shall have obtained from Chicago Title Insurance Company a new title policy for each piece of Real Property, in accordance with amounts and in form and substance reasonably acceptable to Parent and the NGCLlenders of the Financing, but no Lien or Property Restriction set forth on the Company Disclosure Schedule shall be deemed reasonable grounds not to accept a title policy except any required to be removed pursuant to Section 6.21; (i) Parent shall have received an ALTA survey for each piece of Real Property certified to the applicable lender on such Real Property on the Closing Date and Chicago Title Insurance Company, showing no material encroachment or other adverse state of facts rendering title to such Real Property unmarketable, but no (1) Lien or Property Restriction set forth on the Company Disclosure Schedule or (2) state of facts shown on the surveys identified on Schedule 7.2(i) of the Company Disclosure Schedule, shall be deemed reasonable grounds not to accept a survey except any required to be removed pursuant to Section 6.21; (j) Parent shall have received the Estoppel Certificates; (k) Parent shall have received certificates of good standing for the Company and each of its subsidiaries in the jurisdiction in which each is formed and each jurisdiction in which the Company or such subsidiary is qualified to do business or owns Real Property; (l) Parent shall have received the resignation of all directors of the Company; (m) Parent shall have received an opinion of counsel to the Company in the form attached hereto as Exhibit D; and (hn) Immediately prior Parent shall have received written agreements from each holder of any outstanding Option terminating such Option and agreeing to Closing, accept the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Sharesconsideration pursuant to Section 2.2.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger shall be subject to the fulfillment fulfillment, or written waiver by Parent or Merger Sub, as the case may be, at or prior to the Closing, Closing of each of the following conditions: (a) The representations and warranties of the Company set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a); (b) The Company and the Principal Shareholder Interest Holder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder Interest Holder on or prior to the Closing Date; (c) The company There shall have be delivered to Parent and Merger Sub a certificate of the Secretary Manager of the Company and the Principal Shareholder Interest Holder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub the Company any certificates or agreements evidencing the Target Shares and any agreement relating to the Target Member Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretionParent, an audit of the Financial Statements can be completed within forty-five sixty (4560) days after the Closing in accordance with applicable SEC rules and regulations, including Regulation S-X promulgated under the Securities Act; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their its due diligence review in their its sole and absolute discretion; (g) The Target Shareholders Members of the Company shall have approved the Merger in accordance with the NGCLGLLCA; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Member Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Member Shares.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be subject to the fulfillment satisfaction or written waiver by Parent or Merger Subwaiver, at or prior to the Closing, of each of the following conditions: (ai) The representations and warranties of the Company set out contained in Sections 3.3(a), 3.4(a)-(c) (except for de minimis inaccuracies), and 3.21 of this Agreement shall be true and correct in all respects as of the Effective Time as though made on and as of the Effective Time, (ii) the representations and warranties of the Company contained in Section 3.5(g) of this Agreement shall be true and correct in all material respects at (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect”) as of the Effective Time as though made on and as of the time Effective Time, and (iii) all other representations and warranties of the Closing Company contained in this Agreement shall be true and correct in all respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect”) as of the Effective Time as though made on and as of the Effective Time, except where the failure of such representations and warranties were described in this clause (iii) to be true and correct has not had, individually or in the aggregate, a Company Material Adverse Effect; provided in each case that representations and warranties made at and as of such timea specific date need only be true and correct (subject, except that in the case of the representations and warranties set forth described in Section 3.5 shall be updated clauses (ii) and (iii), to such qualifications) as provided in Section 5.15(a);of such specified date. (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, its obligations and agreements required by or covenants contained in this Agreement to be performed or complied with by the Company or the Principal Shareholder on at or prior to the Closing Date;Closing. (c) Since the Agreement Date, there shall not have occurred any event that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) The company Company shall have delivered provided to Parent and Merger Sub a certificate of dated the Secretary Closing Date signed on its behalf by the chief financial officer of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and (bSection 6.2(c) hereof have been satisfied;. (de) The At least two Business Days prior to Closing, the Company shall have delivered to Parent a payoff letter from each holder of the types of Company Indebtedness specified in clauses (i) and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number definition of outstanding Target Shares“Indebtedness” indicating that upon payment of a specific amount, such Indebtedness shall be paid in full and, if applicable, any related security interest shall be automatically released and Parent or its designees shall, to the extent applicable, be authorized to file releases of all Encumbrances relating thereto on the assets and properties of the Company, including, to the extent applicable Uniform Commercial Code termination statements, or such other customary documents or endorsements necessary to evidence the release of the securities interests of all holders.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger Transactions shall be subject to the fulfillment or written waiver by Parent or Merger Subwaiver, at or prior to the Closing, of each of the following conditions: (a) The Each of the representations and warranties of the Company set out forth in this Agreement Article IV, and in each of the other Ancillary Documents delivered to Parent or Merger Sub in connection with the Transactions: (i) shall be true and correct have been accurate in all material respects at and as of the time date of this Agreement; and (ii) shall be accurate in all material respects as of the Closing as though if made at the Closing (except that any representation and warranty that is made exclusively as of, and that refers specifically to, a specified date need only have been accurate in all material respects as of such specified date); provided, however, that in determining the accuracy of such representations and warranties were made at for purposes of this Section 8.02(a), all “Material Adverse Effect” and as other materiality qualifiers limiting the scope of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided disregarded; provided, further, that nothing contained in this Section 5.15(a)8.02(a) shall affect a Parent Indemnified Party’s right to indemnification pursuant to Article IX if the Closing occurs; (b) The Company Each of the covenants and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by that the Company is required to comply with or the Principal Shareholder on to perform at or prior to the Closing Dateshall have been complied with and performed in all material respects; (ci) The company This Agreement and the Merger shall have been duly adopted and approved by the Requisite Stockholder Approval in accordance with the DGCL, (ii) the time period during which holders of Company Capital Stock are entitled to deliver demands for appraisal to the Company pursuant to Section 262 of the DGCL shall have terminated and holders of more than two percent (2%) of the outstanding Company Capital Stock (assuming the conversion of all of the shares of Preferred Stock) shall not have delivered to the Company a demand for appraisal of their Company Capital Stock pursuant to Section 262 of the DGCL; and (iii) there shall have been delivered to Parent and Merger Sub a certificate confirming compliance with the foregoing requirements of this Section 8.02(c), dated the Secretary Closing Date and signed on behalf of the Company and by the Principal Shareholder to Chief Executive Officer of the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfiedCompany; (d) All necessary approvals of Governmental Authorities as may be required for the completion of the Transactions, including the possible requirement of filings, notifications, or requests with relevant competition or merger control authorities, including pursuant to the HSR Act, shall have been received, and, if any filing, notification or request for approval of a Governmental Authority is required under any applicable Law, any applicable waiting period shall have expired or any required approval thereunder shall have been received, in form and substance reasonably satisfactory to Parent and Merger Sub; (e) No temporary restraining Order, preliminary or permanent injunction or other Order preventing the consummation of the Transactions shall have been issued by any court of competent jurisdiction and remain in effect, and there shall not be any Law enacted or deemed applicable to the Transactions that makes consummation of the Transactions illegal; (f) All approvals, waivers, ratifications or similar consents of a third-party listed on Schedule 8.02(f) shall have been obtained and shall be in full force and effect; (g) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to the Company, and no event shall have occurred or circumstance shall exist that, in combination with any other events or circumstances, would reasonably be expected to have a Material Adverse Effect with respect to the Company; (h) There shall be no Action pending against Parent, Merger Sub or the Company or any of their respective Affiliates by any Governmental Authority or any Law enacted or deemed applicable: (i) seeking to enjoin or make illegal, delay or otherwise restrain or prohibit the consummation of the Transactions; (ii) that would result in the Transactions being rescinded following consummation; (iii) seeking material damages in connection with the Transactions; (iv) seeking to prohibit or limit the exercise by Parent or Merger Sub of any material right pertaining to its ownership of Company Capital Stock; (v) seeking to compel the Company, Parent, Merger Sub or any Subsidiary of Parent to dispose of or hold separate any material assets as a result of the Transactions; or (vi) seeking to impose any criminal sanctions or Liability on Parent, Merger Sub or the Company in connection with the Transactions; (i) No Person shall have: (i) commenced, or shall have provided written notice to the Parent, the Company, any of the Company’s Subsidiaries, or any of their respective directors or officers that it intends to commence, an Action alleging, or (ii) provided written notice to the Parent, the Company, any of the Company’s Subsidiaries, or any of their respective directors or officers alleging, in each of (i) and (ii), that (A) any Company Product or Company IP presently embodied, or proposed to be embodied, in any of such product or utilized in Company’s business, infringes or otherwise violates the Intellectual Property rights of such Person; (B) the Company does not own or have the right to exploit such products or Company IP; or (C) any of the material Company IP is invalid or unenforceable, excluding any Intellectual Property prosecution matters from applicable Governmental Authorities; (j) The Company shall have delivered to Parent the Stockholders’ Written Consent executed by at least ninety eight percent (98%) of the voting power of the Company; (k) The Company shall have delivered to Parent a General Release and Merger Sub Indemnity Agreement executed by each Company Stockholder, and each such General Release and Indemnity Agreement shall be in full force and effect as of the Effective Time; (l) The Company shall have delivered to Parent a Protection Agreement executed by each Key Employee, and each such Protection Agreement shall be in full force and effect as of the Effective Time; (m) The Company shall have delivered to Parent an Option Holder Consent Agreement executed by each Option Holder, and each such Option Holder Consent Agreement shall be in full force and effect as of the Effective Time; (n) The Company shall have delivered to Parent a Warrant Holder Consent Agreement executed by each Warrant Holder, and each such Warrant Holder Consent Agreement shall be in full force and effect as of the Effective Time; (o) With respect to any certificates evidencing payments and/or benefits that may constitute “parachute payments” under Section 280G of the Target Shares Code with respect to any Person in connection with the transactions contemplated by this Agreement, (i) the Company shall have received and any agreement relating delivered to Parent a Section 280G Waiver from each Person receiving, or that is eligible to receive, a payment that may constitute a “parachute payment” under Section 280G prior to soliciting the Section 280G Approval and (ii) the Company Stockholders shall have (A) approved, pursuant to the Target Shares method provided for in accordance the regulations promulgated under Section 280G, any such “parachute payments” subject to a Section 280G Waiver or (B) shall have voted upon and disapproved such parachute payments subject to a Section 280G Waiver, and, as a consequence, such “parachute payments” subject to a Section 280G Waiver shall not be paid or provided for in any manner and Parent and its subsidiaries shall not have any Liabilities with 2.2(a)(irespect to such “parachute payments. Each Section 280G Waiver shall be in effect not later than immediately prior to the Effective Time; (p) & Each of the individuals who are entitled to receive a Cash Option Payment at the Closing shall have executed a consent and release agreement in favor of Parent (a “Cash Option Payment Agreement”), in substantially the form attached hereto as Exhibit M; (i) Each of the Key Employees shall have accepted in writing (and not subsequently repudiated or terminated such acceptance) offers for employment with the Surviving Corporation, Parent, or a Subsidiary of Parent on terms approved by Parent and (ii) at least eighty-five percent (85%) of the individuals who receive offers of continued employment from Parent pursuant to Section 6.17(a) shall have accepted in writing (and not subsequently repudiated or terminated such acceptance) offers for employment with the Surviving Corporation, Parent, or a Subsidiary of Parent on terms approved by Parent; (r) At the Closing, the Company shall deliver a title insurance policy with respect to each Owned Real Property with endorsements and affirmative coverage reasonably approved by Parent; (s) Prior to the Closing, the Company shall have caused the release of all shares of Company Capital Stock held in escrow pursuant to that certain Escrow Agreement, dated as of January 5, 2012, by and among VMG Equity Partners, L.P., the Company, and Xxxxx Fargo Bank, National Association (the “Existing Escrow Agreement”) to the Holders (as defined in the Existing Escrow Agreement); (et) The GAAP Financial Statements and records Prior to the Closing, all outstanding notes payable to the Company from any Related Party of the Company shall be of such quality thatbeen discharged and repaid in full; (u) The Company shall have terminated the manufacture, in the judgment of Parent in its sole sale, marketing, and absolute discretion, an audit distribution of the Financial Statements can Ceased Product; (v) The Spin Out Agreement shall have been executed and delivered by the Company, Colorescience, and each Equityholder and shall be completed within forty-five (45) days after in full force and effect as of the Closing Effective Time, and the Spin Out shall occur at the Effective Time in accordance with applicable SEC rules Section 6.18(a) and regulations; (f) Parent the terms and Merger Sub shall have completed a due diligence review conditions of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCLSpin Out; and (hw) Immediately prior The Equityholders and the Company shall have delivered or caused to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Sharesbe delivered all closing deliveries set forth in Section 3.10.

Conditions to Obligations of Parent and Merger Sub. The Solely if the Offer Termination shall have occurred or the Acceptance Time shall not have occurred, the obligations of Parent and Merger Sub to consummate effect the Merger shall be further subject to the fulfillment or written waiver by Parent or Merger Subsatisfaction, at or prior to the Closing, of each of the following conditions: (a) The the representations and warranties of the Company set out forth in this Sections 3.3(a), 3.3(c) (first sentence), and 3.3(d) (second sentence) (Capitalization) of the Agreement shall have been accurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date, except (other than a result of a willful breach by the Company) where the failure to be so accurate in all respects would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate that is more than $1,000,000 (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be true disregarded and correct (ii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 7.2(a)) only as of such date; (b) the representations and warranties of the Company set forth in Sections 3.3 (Capitalization) (other than Sections 3.3(a), 3.3(c) (first sentence) and 3.3(d) (second sentence)), 3.19 (Authority; Binding Nature of Agreement), 3.21 (Vote Required) and 3.24 (Financial Advisor) of the Agreement shall have been accurate in all material respects as of the date of the Agreement, and shall be accurate in all material respects at and as of the time Closing Date as if made on and as of such Closing Date (it being understood that, for purposes of determining the Closing as though accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties were shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made at or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 7.2(b)) only as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(adate); (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or prior to the Closing Date; (c) The company shall have delivered to Parent the representations and Merger Sub a certificate of the Secretary warranties of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a3.5(b) and (bNo Material Adverse Effect) hereof shall have been satisfiedaccurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date (it being understood that any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded); (d) The Company shall have delivered to Parent the representations and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records warranties of the Company shall be of such quality that, set forth in the judgment of Parent Agreement (other than those referred to in its sole and absolute discretionclauses “(a)”, an audit of the Financial Statements can be completed within forty-five “(45b)” or “(c)”) days after the Closing in accordance with applicable SEC rules and regulations; (fabove) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review accurate in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) all respects as of the aggregate number date of outstanding Target Shares.the Agreement, and shall be accurate in all respects at and as of the Closing Date as if made on and as of such date, except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth above) only as of such date);

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger transactions contemplated by this Agreement shall be subject to the fulfillment or written waiver by Parent or Merger SubParent’s waiver, at or prior to the Closing, of each of the following conditions: (a) The representations and warranties of the Company set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a); (b) The Company and the Principal Shareholder shall have duly performed and complied in all material respects with all covenantsagreements, conditions, obligations covenants and agreements conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by the Company or the Principal Shareholder on or it prior to or on the Closing Date;. (b) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (c) The company From the date of this Agreement, there shall not have delivered occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to Parent and Merger Sub result in a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied;Material Adverse Effect. (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing each of the Target Shares and any agreement relating to the Target Shares closing deliverables set forth in accordance with 2.2(a)(i) & (iiSection 2.03(a);. (e) The GAAP Financial Statements and records Holders of no more than ten percent (10%) of the outstanding shares of Company shall be Stock, on an as-converted basis, as of such quality thatimmediately prior to the Effective Time, in the judgment of Parent in its sole and absolute discretionaggregate, an audit shall have exercised, or remain entitled to exercise, statutory appraisal rights pursuant to Section 262 of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance DGCL with applicable SEC rules and regulations;respect to such shares of Company Stock. (f) Parent and Merger Sub shall have completed a due diligence review of obtained the businessR&W Insurance Policy from an insurer and with terms mutually agreeable to Parent and the Stockholder Representative, operations, financial condition with the R&W Insurance Premium being split equally by Parent and prospects of the Company and shall have been satisfied with (the results Company’s share of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Sharessuch R&W Insurance Premium being deemed a Transaction Expense).

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger transactions contemplated by this Agreement shall be subject to the fulfillment or written waiver by Parent or Merger Subfulfillment, at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by Parent in its sole discretion: (a) (i) The representations and warranties of the Company set out contained in Sections 3.2 and 3.4 of this Agreement shall be true and correct in all material respects at both when made and as of the time Closing Date, or in the case of the Closing representations and warranties in such sections that are made as though of a specified date, such representations and warranties were shall be true and correct in all material respects as of such specified date; and (ii) all other representations and warranties of the Company contained in this Agreement or any certificate delivered pursuant hereto shall be true and correct both when made at and as of such timethe Closing Date, except that or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date, except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material,” but not the word “Material” in the term “Material Contracts” or “Material Adverse Effect” set forth therein) do not, individually or in Section 3.5 shall be updated as provided in Section 5.15(a);the aggregate, have a Material Adverse Effect. (b) The Company and the Principal Shareholder shall have performed and complied have, in all material respects respects, except with respect to the covenant in Section 5.8(f), which shall be in all covenantsrespects, conditions, performed all obligations and agreements and complied with all covenants and conditions required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or it prior to or at the Closing Date;Closing. (c) The company Parent shall have delivered to Parent and Merger Sub received from the Company a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(aSections 6.3(a) and (b) hereof have been satisfied;), signed by a duly authorized officer thereof. (d) The Company consents set forth in Schedule 6.3(d) shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii);been obtained. (e) The GAAP Financial Statements and records Holders of Shares at the Effective Time representing not more than the percentage of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45outstanding Shares set forth on Schedule 6.3(e) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of properly demanded appraisal rights under the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target SharesDGCL.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement shall be subject to the fulfillment or written waiver by Parent or Merger SubParent’s waiver, at or prior to the Closing, of each of the following conditions: (a) The representations and warranties of the Company set out Seller Group contained in this Agreement or any Ancillary Document or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the Merger and the transactions contemplated hereby and thereby shall be true and correct in all material respects at both when made and as of the time Closing Date, or in the case of the Closing representations and warranties that are made as though of a specified date, such representations and warranties were made at shall be materially true and correct as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a);specified date. (b) The Company and the Principal Shareholder Seller Group shall have duly performed and complied in all material respects with all covenantsagreements, conditions, obligations covenants and agreements conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Company Closing Date. (c) There shall not have occurred any change, event or development or prospective change, event or development that, individually or in the Principal Shareholder aggregate, has had or is reasonably likely to have a Material Adverse Effect with respect to the Company. (d) All approvals, consents and waivers that are listed on Section 3.05 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Closing Date;Closing. (ce) The company Seller Group shall have delivered to Parent and Merger Sub a certificate each of the Secretary of the Company and the Principal Shareholder to the effect that the conditions closing deliverables set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii2.05(b); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations;. (f) Parent and Merger Sub shall have completed a due diligence review of obtained satisfactory debt and equity financing sufficient to fund the businessTransactions, operations, financial condition on terms and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion;conditions acceptable to Parent. (g) The Target Shareholders Persons listed on Schedule 1.01(b) shall have approved the Merger in accordance continue their employment with the NGCL; andSurviving Company. (h) Immediately If the terms of the PPP Loan, or any other loans received by the Company under the Paycheck Protection Program pursuant to Section 1102 of the CARES Act guaranteed by the SBA requires the consent of the U.S. Small Business Administration to the transactions contemplated by this Agreement, either (i) the Parent shall have received a copy of such consent or (ii) the Company shall have fully paid off such PPP Loan in each case, no later than five (5) Business Days prior to the Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent . (5%i) Evidence of the aggregate number Backlog of outstanding Target Sharesthe Company as of the Closing Date in an amount no less than $3,874,947, as of October 7, 2020, subject to adjustments in the Company’s normal course of business, to be delivered three (3) Business Days prior to the Closing. (j) Evidence, satisfactory to Parent, that the Company directly owns Leased Equipment, Forklift, Computer Software, Office Equipment, and Vehicles (each as represented on the Estimated Closing Date Statement) with a Fixed Asset Acquisition Cost of $4,311,345, $37,873, $81,231, $83,871, and $1,133,548, subject to adjustment resulting from any audit, provided that the adjustment does not materially affect the Company’s operations.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger shall be are further subject to the fulfillment satisfaction (or written waiver by Parent or Merger SubParent, if permissible under Law) at or prior to the Closing, of each Closing of the following conditions: (a) The (i) the representations and warranties of the Company contained in each of Section 4.2(a) and (b) (Capitalization) (except for any de minimis inaccuracies therein), Section 4.3 (Authorization; Validity of the Agreement; Company Action), Section 4.4 (Consents and Approvals; No Violations), Section 4.18 (Vote Required), Section 4.19 (Company Board Recommendation), and Section 4.22 (State Takeover Statutes) shall be true and accurate in all respects both when made and as of the Closing Date as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date) and (ii) all other representations and warranties of the Company set out forth in this Agreement Article IV shall be true and correct accurate in all respects (without giving effect to any materiality or material respects at adverse effect qualifications contained therein) both when made and as of the time Closing Date as though made on and as of the Closing Date (except to the extent expressly made as though of an earlier date, in which case as of such date), except where the failure of such other representations and warranties were made at to be so true and as of such timeaccurate would not, except that individually or in the representations and warranties set forth in Section 3.5 shall aggregate, reasonably be updated as provided in Section 5.15(a)expected to have a Company Material Adverse Effect; (b) The the Company and the Principal Shareholder shall have performed and complied have, in all material respects respects, performed or complied with all covenants, conditions, obligations and agreements or covenants required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing DateEffective Time; (c) The company since the date of this Agreement, no Company Material Adverse Effect shall have occurred; (d) the conditions to closing of the Patent Purchase Agreement have been satisfied or waived and the closing thereunder has occurred and the Company has received $450,000,000 in proceeds payable in connection with the closing thereunder; (e) the Company and its Subsidiaries shall have the Minimum Cash available to them; and (f) the Company shall have delivered to Parent and Merger Sub a certificate of certificate, dated the Secretary Closing Date, signed by an officer of the Company and the Principal Shareholder certifying to the effect that the conditions set forth in Section 6.2(aSections 7.2(a), (b), (c), (d) and (be) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Shares.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the First Merger shall also be subject to the fulfillment satisfaction or written waiver of the following conditions by Parent or Merger Sub, at or prior to the Closing, of each of the following conditions: (a) (i) The representations and warranties of the Company set out forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects at on the date hereof and as of the time of on the Closing Date as though such representations and warranties were if made at on and as of such timedates, except that other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representations and warranties representation set forth in Section 3.5 4.12(b) shall be updated true and correct in all respects on the Closing Date as provided if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in Section 5.15(athe manner set forth in clause (i);, (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement of its covenants hereunder to be performed or complied with by the Company or the Principal Shareholder on or it prior to the Closing Date;Effective Time in all material respects through the Closing. (c) The company shall have delivered to Parent and Merger Sub a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall be of such quality have received from Xxxxxx & Xxxxxxx LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, in on the judgment of Parent in its sole and absolute discretion, an audit basis of the Financial Statements can be completed within forty-five (45) days after the Closing facts, representations and assumptions set forth or referred to in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the businesssuch opinion, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closingfor United States federal income tax purposes, the aggregate number Transaction will constitute a “reorganization” within the meaning of Dissenting Target Shares shall not exceed five percent (5%Section 368(a) of the aggregate number of outstanding Target SharesCode. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger Transactions shall be subject to the fulfillment or written waiver by Parent or Merger Subwaiver, at or prior to the Closing, of each of the following conditions: (a) The Each of the representations and warranties of the Company set out forth in this Agreement Article IV and in each of the other Contracts delivered to Parent or Merger Sub in connection with the Transactions: (i) shall be true and correct have been accurate in all material respects at and as of the time date of this Agreement; and (ii) shall be accurate in all material respects as of the Closing as though if made at the Closing (except that any representation and warranty that is made exclusively as of, and that refers specifically to, a specified date need only have been accurate in all material respects as of such specified date), except in the case of both clauses (i) and (ii) (individually and together), for inaccuracies that would not, individually or in the aggregate, reasonably be expected to result in or otherwise involve Damages in excess of Twenty Seven Million Seven Hundred Fifty Thousand Dollars ($27,750,000); provided, however, that in determining the accuracy of such representations and warranties were made at for purposes of this Section 8.02(a), all “Material Adverse Effect” and as other materiality qualifications limiting the scope of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided disregarded; provided, further that nothing contained in this Section 5.15(a)8.02(a) shall affect a Parent Indemnified Party’s right to indemnification pursuant to Article IX if the Closing occurs; (b) The Each of the covenants and obligations that an Acquired Company and the Principal Shareholder shall have performed and complied in all material respects is required to comply with all covenants, conditions, obligations and agreements required by this Agreement or to be performed or complied with by the Company or the Principal Shareholder on perform at or prior to the Closing Dateshall have been complied with and performed in all material respects; (c) The company Neither any Change in Control Payments made, nor any Company Options granted, nor any other payments made to any Person in connection with or in contemplation of the Transactions shall constitute a “parachute payment” under Sections 280G and 4999 of the Code; (d) All necessary approvals of Governmental Authorities as may be required for the completion of the Transactions, including the possible requirement of filings, notifications or requests with relevant competition or merger control authorities, including the HSR Act, shall have delivered been received, and, if any filing, notification or request for approval of a Governmental Authority is required under any applicable Law, any applicable waiting period shall have expired or any required approval thereunder shall have been received, in form and substance reasonably satisfactory to Parent and Merger Sub a certificate Sub; (e) No temporary restraining Order, preliminary or permanent injunction or other Order preventing the consummation of the Secretary Transactions shall have been issued by any court of competent jurisdiction and remain in effect, and there shall not be any Law enacted or deemed applicable to the Transactions that makes consummation of the Transactions illegal; (f) All approvals, waivers, ratifications or similar consents of a third party listed on Schedule F shall have been obtained and shall be in full force and effect; (g) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect, and no event shall have occurred or circumstance shall exist that, in combination with any other events or circumstances, would reasonably be expected to have or result in a Material Adverse Effect; (h) There shall be no Action pending against Parent, Merger Sub or any of the Acquired Companies or any of their respective Affiliates by any Governmental Authority or any Law enacted or deemed applicable (i) seeking to enjoin or make illegal, delay or otherwise restrain or prohibit the consummation of the Transactions, (ii) that would result in the Transactions being rescinded following consummation, (iii) seeking material damages in connection with the Transactions; (iv) seeking to prohibit or limit the exercise by Parent or Merger Sub of any material right pertaining to its ownership of Company Stock; (v) seeking to compel an Acquired Company, Parent, Merger Sub or any Subsidiary of Parent to dispose of or hold separate any material assets as a result of the Transactions; or (vi) seeking to impose any criminal sanctions or Liability on Parent, Merger Sub or the Acquired Companies in connection with the Transactions; (i) The Company Securityholders and the Principal Shareholder Company shall have delivered or caused to the effect that the conditions be delivered all closing deliveries set forth in Section 6.2(a) and (b) hereof have been satisfied3.12; (dj) Within one (1) Business Day after the execution and delivery of this Agreement, the Merger shall have been duly approved by the Requisite Stockholder Approval pursuant to the execution and delivery to Parent of the Stockholders’ Written Consent; (k) The Company shall have amended its existing severance policy as set forth in Section 6.15. (l) The Indevus Agreement shall be, or upon the Closing shall become, in full force and effect in accordance with its terms; (m) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii)Statement of Closing Net Working Capital; (en) The GAAP Financial Statements and records Each of the Company Acquired Companies shall be of such quality thathave filed their federal, in state and local income Tax Returns for the judgment of Parent in its sole and absolute discretionyear ended December 31, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations;2006. (fo) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed No more than five percent (5%) of the aggregate number of shares of Company Stock outstanding Target as of the Closing Date shall be Dissenting Shares or shall have the right under the DGCL to become Dissenting Shares; (p) The Company shall have provided to Parent (i) executed resolutions of the board of directors of the Company authorizing the termination, effective no later than one day prior to the Closing Date, of any 401(k) plan adopted or in existence and (ii) an executed amendment to any 401(k) Plan sufficient to assure compliance with all applicable requirements of the Code and regulations thereunder so that the tax qualified status of any 401(k) Plan will be maintained at the time of termination; and (q) The Company shall have completed the Company Divestiture in a manner that will not result in any Liability of the Surviving Corporation and is otherwise reasonably acceptable to Parent.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be are further subject to the fulfillment satisfaction or written waiver by Parent or Merger Sub, at or prior to the Closing, of each Effective Time of the following conditions: (a) The (i) the representations and warranties of the Company set out contained in this Agreement Section 4.2, Section 4.3(a), Section 4.3(b) and Section 4.4 shall be true and correct in all material respects at and as of the time of Closing Date as if made on the Closing as though Date (except to the extent such representations and warranties were are made as of a specific date, in which case such representations and warranties shall be true and correct as of such date) except in respect of Section 4.3(a) and Section 4.3(b), inaccuracies that would result in the payment of an additional $750,000 or less pursuant to Section 1.4(a) and Section 2.8, in the aggregate, and (ii) except as provided in Section 8.2(h), all other representations and warranties of the Company contained in Article IV shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) at and as of the Closing Date as if made on the Closing Date (except to the extent such time, except that the representations and warranties set forth are made as of a specific date, in Section 3.5 which case such representations and warranties shall be updated true and correct as provided of such date), except where the failure of any such representation or warranty to be true and correct has not had and would not reasonably be expected to have, individually or in Section 5.15(a)the aggregate, a Company Material Adverse Effect; (b) The the Company and the Principal Shareholder shall have performed in all material respects the obligations, and complied in all material respects with all covenants, conditions, obligations the agreements and agreements covenants required by this Agreement to be performed by, or complied with by the Company or the Principal Shareholder on by, it under this Agreement at or prior to the Closing DateEffective Time; (c) The company the Company shall have delivered customary documents from each debt payoff recipient set forth on Section 8.2(c) of the Company Disclosure Letter, including a payoff letter (each a “Debt Payoff Letter”), evidencing the repayment in full of all Indebtedness owing to each such debt payoff recipient (and the termination of all agreements, commitments and instruments and the irrevocable release of all Liens in connection therewith); (d) since the date of this Agreement, there shall not have been any Company Material Adverse Effect, or any event, change or effect that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (e) the Company shall have delivered to Parent and Merger Sub a certificate certificate, signed by its chief executive officer or another senior officer on behalf of the Secretary of the Company and the Principal Shareholder Company, to the effect that the conditions set forth contained in Section 6.2(aSections 8.2(a), 8.2(b) and (b8.2(d) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares satisfied in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulationsall respects; (f) Parent and Merger Sub the Closing Date AUM shall have completed a due diligence review not be less than 85% of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretionBase Date AUM; (g) The Target Shareholders the Executive Employment Agreement shall be in full force and effect at the Effective Time and on the Closing Date the Executive shall be alive and employed by the Company or a Subsidiary of the Company, and shall not have approved been incapacitated in such a manner as would, or would reasonably be expected to, prevent or materially impair the Merger in accordance with Executive’s ability to perform his material duties on behalf of the NGCLCompany and its Subsidiaries; and (h) Immediately prior to Closingthe representations and warranties of the Company contained in Section 4.25(d) shall be true and correct at and as of the Closing Date as if made on the Closing Date except for inaccuracies that do not, individually or in the aggregate number aggregate, cause the failure of Dissenting Target Shares shall not exceed five percent the condition set forth in clause (5%iv) of the aggregate number “Conditions to Closing” set forth on Exhibit A of outstanding Target Sharesthe Receivables Commitment Letter (it being understood that no such failure shall be deemed to have occurred if any of (i) such condition or inaccuracies are waived by the Receivables Purchaser, (ii) the Receivables Commitment Letter is terminated and Parent enters into a Financing Agreement with respect to any Alternative Debt Financing as contemplated by Section 7.9 that does not contain such condition or (iii) the Receivables Commitment Letter is terminated and Parent enters into a Financing Agreement with respect to any Alternative Debt Financing as contemplated by Section 7.9 that does contain such condition, but such condition or inaccuracies are waived by the Financing Source providing such Alternative Debt Financing).

Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate effect the Merger shall be subject to the fulfillment satisfaction or written waiver by Parent or Merger Sub, at or prior to the Closing, of each Effective Time of the following conditions: (a) The there shall not have occurred any change, occurrence or development that, individually or in the aggregate, has had or would reasonably be expected to have, a Company Material Adverse Effect; (b) (i) each of the representations and warranties of the Company set out forth in this Agreement (other than in Sections 3.3 and 3.4) that is not qualified by materiality shall be true and correct in all material respects at and as of the time of the Closing Date as though such representations and warranties were made at and as of such time, except that date and each of the representations and warranties of the Company set forth in Section 3.5 this Agreement (other than in Sections 3.3 and 3.4) that is qualified by the words “Company Material Adverse Effect”, “in all material respects”, “in any material respect”, “material”, “materially” or any similar qualification shall be updated true and correct as provided of the Closing Date as though made as of such date (except, in each case, to the extent expressly made as of an earlier date, in which case as of such earlier date), and (ii) the representations and warranties of the Company set forth in Sections 3.3 and 3.4 shall be true and correct as of the Closing Date (subject to any changes expressly permitted by this Agreement, including any shares Company Common Shares contemplated to be issued pursuant to the Company Financing and the financing contemplated by Section 5.15(a5.1(b)) as though made as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); (bc) The the Company and the Principal Shareholder shall have performed in all material respects each obligation and complied in all material respects with all covenants, conditions, obligations and agreements each agreement or covenant of the Company required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or prior to the Closing Dateit under this Agreement; (cd) The company the Parent shall have delivered to Parent and Merger Sub received a certificate of the Secretary executed on behalf of the Company and by an officer of the Principal Shareholder to the effect Company, certifying that the conditions set forth in Section 6.2(aSections 7.2(a) and through (bc) hereof have been satisfied; (de) The the Company Financing shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & been consummated on or before March 29, 2013 (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality thatunless extended by Parent, in the judgment of Parent in its sole and absolute discretion). For purposes of this Agreement, an audit “Company Financing” means the issuance of the Financial Statements can be completed within forty-five additional Company securities (45at a price per Unit of not less than $0.10) days after the Closing in accordance connection with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of financing by the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretionan amount equal to $1,900,000; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Shares.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be are further subject to the fulfillment satisfaction (or written waiver by Parent or Merger Subwaiver, at if permissible under applicable Law) on or prior to the Closing, of each Closing Date of the following conditions: (a) The representations and warranties of the Company Fundamental Representations set out forth in this Agreement shall be true and correct in all material respects at as of the date hereof and as of the time Closing, except the Fundamental Representations made as of an earlier date or time, which need be true and correct only as of such earlier date or time. The representations of the Company set forth in this Agreement other than the Fundamental Representations shall be true and correct as of the date hereof and as the Closing as though such except (i) for representations and warranties were made at that speak as of a specific date or time (which need be true and correct only as of such date or time, except that ) and (ii) for breaches of the representations and warranties of the Company set forth in Section 3.5 shall be updated as provided ARTICLE III (other than the Fundamental Representations) that, in Section 5.15(a)the aggregate, would not have a Material Adverse Effect; (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing Date; (c) The company There shall not be any event that is continuing that would individually, or in the aggregate, reasonably be expected to have a Material Adverse Effect; (d) Parent shall have delivered to Parent and Merger Sub received a certificate certificate, signed by the chief executive officer or chief financial officer of the Secretary of the Company and the Principal Shareholder Company, certifying as to the effect that the conditions matters set forth in Section 6.2(a5.8, Section 8.2(a), Section 8.2(b) and (b) hereof have been satisfied‎Section 8.2(c); (de) The Company shall have executed and delivered to the Parent a copy of each Transaction Documents to which it is a party; (f) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance Employment Agreement with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretionBxx Xxxx; (g) The Target Shareholders Company shall cause the Stockholders set forth on Schedule 8.2(g) (the “Key Stockholders”) to execute and deliver to Parent the Lock-Up Agreement; (h) Parent shall have received copies of third party consents set forth on Schedule 8.2(h) in form and substance reasonably satisfactory to the Parent, and no such consents have been revoked and the PIPE Financing and such listing shall have been approved by Nasdaq subject to official notice of issuance; (i) Parent shall have received a certificate, signed by an officer of the Merger Company, certifying that true, complete and correct copies of the Organizational Documents of the Company and each of its Subsidiaries, as in accordance with effect on the NGCLClosing Date, are attached to such certificate; (j) Parent shall have received a certificate, signed by an officer of the Company, certifying that true, complete and correct copies of (i) the unanimous written consent of the Stockholders, and (ii) the resolutions of the directors of the Company authorizing the execution and delivery of this Agreement and the other Transaction Documents to which it is a party and performance by the Company of the Transactions, including the Merger, each having been duly and validly adopted and being in full force and effect as of the Closing Date, are attached to such certificate; and (hk) Immediately prior The Company shall have delivered to Closing, Parent a certificate of good standing with respect to the aggregate number Company from State of Dissenting Target Shares Delaware and State of California. (l) The Company shall not exceed five percent (5%) cause the Stockholder set forth on Schedule 1.6 to execute and deliver a counterpart of the aggregate number Investor Rights Agreement; (m) The Company shall cause the Key Stockholders to execute and deliver a counterpart of outstanding Target Sharesthe voting agreement attached hereto as Exhibit J (the “Voting Agreement”). If the Closing occurs, all Closing conditions set forth in Section 8.1 and Section 8.2 that have not been fully satisfied as of the Closing will be deemed to have been waived by Parent and Merger Sub.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be further subject to the fulfillment satisfaction or written waiver by Parent or Merger Sub, at or prior to the Closing, of each Effective Time of the following conditions: (ai) The the representations and warranties of the Company set out forth in this Agreement Agreement, as the same may be updated or corrected in accordance with Section 5.13 of this Agreement, shall be true and correct correct, in all material respects each case as of the date of this Agreement and at and as of the time of the Closing Effective Time, as though such representations and warranties were made at on and as of such timedate (unless any such representation or warranty is made only as of a specific date, in which event as of such specified date), taking into account all materiality and Company Material Adverse Effect qualifiers, any updated disclosure schedules delivered by Parent to Company prior to Closing in accordance with Section 5.13, and except for any other failures to be true and correct that would not, individually or in the representations and warranties set forth in Section 3.5 shall aggregate, reasonably be updated as provided in Section 5.15(a)expected to have a Company Material Adverse Effect; (bii) The the Company and the Principal Shareholder shall have performed in all material respects each of the obligations, and complied in all material respects with all each of the agreements and covenants, conditions, obligations and agreements required by this Agreement to be performed by, or complied with by by, it under this Agreement at or prior to the Closing; (iii) there shall not have been any event, circumstance, change or effect that, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect; (iv) Parent shall have received a certificate of the Chief Executive Officer or the Chief Financial Officer of the Company, certifying that the conditions set forth in Sections 6.02(i), (ii) and (iii) have been satisfied; (v) the Company or shall have obtained and provided to Parent copies of evidence with respect to, the Principal Shareholder on or Company Required Consents, the terms of which shall be reasonably satisfactory to Parent and Merger Sub; (vi) Parent shall have received fully executed copies of the Registration Rights Agreement, the Shareholders Agreement, and the Employment Agreements. (vii) the Company shall have obtained and provided to Parent a certificate of good standing with respect to the Company from the State of California, which certificate shall be dated a date not more than fifteen (15) Business Days prior to the Closing Date; (cviii) The company Parent shall have delivered to Parent and Merger Sub a certificate received an opinion of the Secretary of the Company and the Principal Shareholder Hxxxxx, Xxxxxxxx, Marcus, Vxxxxx & Rxxx LLP, counsel to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality thatCompany, in the judgment of Parent in its sole form and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCLsubstance reasonably satisfactory to Parent; and (hix) Immediately prior no suit, action, proceeding, claim, inquiry or investigation by any Governmental Authority or any third party shall be pending seeking to Closingprohibit or restrain, or seeking damages in connection with the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of Merger or the aggregate number of outstanding Target Shares.Transactions; and

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger transactions contemplated by this Agreement shall be subject to the fulfillment or written waiver by Parent or Merger SubParent’s waiver, at or prior to the Closing, of each of the following conditions: (a) Other than the representations and warranties of the Company contained in Section 3.01, Section 3.02(a) and Section 3.04, the representations and warranties of the Company contained in this Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of the Company set out contained in this Agreement Section 3.01, Section 3.02(a) and Section 3.04 shall be true and correct in all material respects at on and as of the time date hereof and on and as of the Closing Date with the same effect as though such representations and warranties were made at and as of such time, date (except that the those representations and warranties set forth in Section 3.5 that address matters only as of a specified date, the accuracy of which shall be updated determined as provided of that specified date in Section 5.15(aall respects); (b) The Company and the Principal Shareholder shall have duly performed and complied in all material respects with all covenantsagreements, conditions, obligations covenants and agreements conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by the Company or the Principal Shareholder on or it prior to or on the Closing Date; (c) The company Majority Shareholder shall have delivered to Parent duly performed and Merger Sub a certificate complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Secretary of Ancillary Documents to be performed or complied with by it prior to or on the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfiedClosing Date; (d) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby; (e) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect; (f) If, and only if, all other conditions as set forth in this Section 8.02 have been satisfied, immediately prior to the Closing, the Company shall make a repayment of the Indebtedness to AgeX in the amount of $250,000 (the “AgeX Repayment”). Concurrently with this AgeX Repayment, AgeX shall convert any and all outstanding Indebtedness owed by the Company to AgeX as of the Closing Date (including all principal and accrued interest) into a number of Shares (the “AgeX Loan Shares”) (such conversion is referred to as the “AgeX Loan Conversion”) at a conversion price of $0.0541 per share. Upon such conversion, AgeX shall execute and deliver to Parent a statement, confirming that all outstanding Indebtedness owed by the Company to AgeX has been cancelled, all obligations thereunder have been paid in full, and all liens, if any, securing the Company’s obligations thereunder have been released (the “AgeX Loan Payoff Statement”). The Company Charter Document shall be amended, if applicable, to increase the authorized number of Shares of the Company to an amount sufficient to permit the Company to issue the AgeX Loan Shares; (g) The Majority Shareholder shall have settled all outstanding legal bills owed to Thompson, Welch, Sxxxxx & Gxxxxxx LLP, including those that are incurred in connection with the transactions contemplated by this Agreement; (h) All documents provided to the Company by Mor & Gold, the Israeli law firm handling the dissolution of the Israeli Sub, shall have been signed and returned to Mor & Gold, and Mor & Gold shall have confirmed that the dissolution process has commenced (the “Dissolution Commencement Confirmation”). For the avoidance of doubt, the Company shall not be obligated to complete the dissolution of the Israeli Sub before the Closing if a tax obligation to the State of Israel is required to be discharged as a condition to the dissolution; (i) A termination has been executed by and among AgeX, Lineage and the Company, terminating any service and cost sharing agreements among AgeX, Lineage and the Company, including but not limited to, that certain LifeMap Services Agreement entered into on November 8, 2017 by and among the Company, Lineage and AgeX (the “Services Agreement”), and discharging and releasing the Company from any past or future obligations thereunder, including but not limited to, any fees that have incurred but not been paid under the Services Agreement (the “Services Termination Agreement”); and (j) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records each of the Company shall closing deliverables set forth in Section 2.03(a); provided that the closing deliverable set forth under Section 2.03(a)(xii) may be of such quality that, in delivered by the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior Majority Shareholder pursuant to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target SharesSection 6.04 hereof.

Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate effect the Merger shall be subject to the fulfillment satisfaction or written waiver by Parent or Merger Sub, at or prior to the Closing, of each Effective Time of the following conditions: (a) The the representations and warranties of the Company set out forth in this Agreement shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Company Material Adverse Effect”, “in all material respects at respects”, “in any material respect”, “material” or “materially”) as of the Effective Time as though made on and as of the time Effective Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), after giving effect to any updates made to the Closing as though Company Schedule of Exceptions made on or after the date hereof and prior to Closing, in each case except where the failure of any such representations and warranties were made at to be so true and as of such timecorrect would not, except that or would not reasonably be expected to, individually or in the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a)aggregate, have a Company Material Adverse Effect; (b) The the Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, its obligations pursuant to Article 5 and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or prior to the Closing DateArticle 6; (c) The company the outstanding indebtedness of the Company shall not exceed Five Million Four Hundred Thousand Dollars ($5,400,000) which shall exclude any capital leases, leasehold improvements, insurance premium financing and financing of the AT&T equipment lease of the Company or its Subsidiaries and which shall be calculated in accordance with Section 6.12; (d) the Company shall have obtained and delivered to Parent and Merger Sub a certificate of the Secretary any consent, approval, authorization, permit, action, or notification set forth on Schedule 3.5(a) of the Company Schedule of Exceptions which (i) shall be in form and the Principal Shareholder substance reasonably satisfactory to Parent, (ii) shall not be subject to the effect satisfaction of any condition that has not been satisfied or waived, and (iii) shall be in full force and effect; (e) stockholders of the Company constituting the Company Requisite Vote shall have approved this Agreement; (f) the Voting Agreements shall have been executed and delivered by Voting Agreement Stockholders and such Voting Agreements shall be in full force and effect; (g) holders owning no more than five percent (5%), in the aggregate, of the outstanding Company Common Stock shall have perfected and not withdrawn a demand for dissenters’ rights pursuant to the DGCL and Section 2.4; (h) all planned severance, change of control payments, accelerations, accrued compensation, bonus, and vacation relating to any and all employees and consultants shall not be in excess of amounts set forth in Schedule 7.2(h) of the Company Schedule of Exceptions on the date hereof; Xxxxxxx Xxxx shall have entered into an employment agreement with the Parent and Company in accordance with the terms set forth on Exhibit 7.2(h); (i) the Parent shall have received Certificates executed on behalf of the Company by the chief executive officer of the Company certifying that the conditions set forth in Section 6.2(a7.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Shares.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger shall be transactions contemplated by this Agreement are subject to the fulfillment satisfaction or written waiver (if permitted by Parent or Merger Sub, applicable Law) at or prior to the Closing, Closing of each of the following conditions: (a) The representations and warranties of the Company contained in Section 4.1(a)-(c), Section 4.2, and Section 4.21 shall be true and correct in all material respects (without giving effect to any materiality, Material Adverse Effect or other similar qualifications contained therein) at and as of the Agreement Date and at and as of the Closing Date as if made on and as of the Closing Date (except (x) in the case of Section 4.2, for de minimis inaccuracies and (y) to the extent expressly made as of an earlier date, in which case, as of such date). The other representations and warranties of the Company set out forth in this Agreement shall be true and correct in all material respects at (without giving effect to any materiality or Material Adverse Effect qualifications contained therein) as of the Agreement Date and as of the time Closing Date as though made on and as of the Closing Date (except to the extent expressly made as though of an earlier date, in which case, as of such date), except where the failure of such representations and warranties were made at to be so true and correct would not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and its Subsidiaries, taken as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a);a whole. (b) The Company and the Principal Shareholder shall must have performed and complied with in all material respects with all covenants, conditions, agreements and obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing Date;. (c) The company waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act or any applicable antitrust and competition Laws of foreign countries to the extent set forth on Schedule 7.2(c) will have expired or been terminated. (d) None of the parties hereto will be subject to any Law then in effect enacted, issued, promulgated by a Governmental Authority of competent jurisdiction or any Order of a court of competent jurisdiction, in each case, enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement. (e) There shall not have been any Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, between the Agreement Date and the Closing that still constitutes a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, as of the Closing Date. (f) The Employment Offer Letter and Non-Competition Agreement of each of the Key Employees and the Specified Employees, respectively, shall continue to be in full force and effect as of the Closing and no Key Employee shall have provided notice of termination of his or her employment with the Company or any of its Subsidiaries. No fewer than [***]% of those Company employees listed on Schedule 7.2(f) (the “Employee Threshold”) shall be employed by the Company immediately prior to the Closing and shall have accepted an offer of continued employment with the Company, Parent or an Affiliate of the Company or Parent, as applicable, in a writing signed by such employees and delivered to Parent (such continuing employees, the “Continuing Employees”). None of the Key Employees shall have, and Merger Sub a no more than [***]% of the Company employees listed on Schedule 7.2(f) shall have, revoked or rescinded their acceptances of the offer of continued employment from the Company, Parent or an Affiliate of the Company or Parent, as applicable. (g) At or prior to the Closing, the Company shall deliver, or cause to be delivered, to Parent the following items: (i) The payoff letters with respect to the Company Debt and any necessary UCC authorizations or other releases as may be reasonably required or as set forth in such payoff letters to evidence the satisfaction of such Company Debt following the satisfaction of the terms contained in each such payoff letter, in each case, in accordance with Section 6.10; (ii) A certificate of the Secretary of State of Delaware as to the good standing as of a recent date of the Company in Delaware; (iii) A certificate from an officer of the Company, given by him or her on behalf of the Company and the Principal Shareholder not in his or her individual capacity, to the effect that that, with respect to the Company, the conditions set forth in Section 6.2(a7.2(a), Section 7.2(b) and (bSection 7.2(e) hereof have been satisfied; (div) The Company shall have delivered to Parent Original corporate record books and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality thatstock or equity record books, in the judgment of Parent in its sole and absolute discretionas applicable, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with each of its Subsidiaries to the results extent possessed by a third party other than the Company and its Subsidiaries as of their due diligence review in their sole and absolute discretionthe Closing; (gv) The Target Shareholders shall An affidavit issued to Parent by an officer of the Company as required by Treasury Regulation Section 1.1445-2(c)(3) certifying that the Company has not been a United States real property holding corporation (as the term is defined in the Code and the Treasury Regulations promulgated in connection therewith) at any time during the five‑year period ending on the Closing Date, in form and substance reasonably satisfactory to Parent; (vi) Duly executed copies of all Consents set forth on Schedule 7.2(g)(vi) and Schedule 4.3(b), in each case in form and substance reasonably satisfactory to Parent; (vii) Evidence reasonably satisfactory to Parent that all Liens on the assets of the Company and its Subsidiaries (other than Permitted Liens) will have approved been released in full following the Merger satisfaction of the terms contained in the documentation with respect to the release of such Liens, in each case, in accordance with Section 6.10; (viii) A true, correct and complete copy of resolutions adopted by the NGCLCompany’s board of directors providing for the termination of the Company’s 401(k) Plan as contemplated by Section 6.12. (ix) The Spreadsheet in a form reasonably satisfactory to Parent; (x) The Expense Acknowledgements; (xi) The Stockholders’ Written Consent; (xii) The Estimated Closing Statement; (xiii) Duly executed Joinder Agreements from Sellers holding at least [***]% of the Fully Diluted Common Shares (including the Founder Stockholder) and [***]% of the Outstanding Series B Shares; (xiv) Each Promised Optionholder shall have executed and delivered to the Company and Parent a waiver and acknowledgement in the form attached hereto as Exhibit G (the “Promised Option Bonus Letter and Release”), which amounts payable thereunder shall constitute Selling Expenses under this Agreement; (xv) A waiver and acknowledgement in the form attached hereto as Exhibit H (the “Founder Acknowledgement”) from each of the Founders and the Founder Stockholder; and (hxvi) Immediately prior A counterpart to Closingeach Ancillary Agreement that the Company and/or the Representative is party to shall have been duly executed by the Company and/or the Representative, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Sharesas applicable, and delivered to Parent.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be further subject to the fulfillment or written waiver by Parent or Merger Subsatisfaction, at or prior to the Closing, of each of the following conditions: (a) The the representations and warranties of the Company set out forth in this Sections 2.3(a), 2.3(c) (first sentence), and 2.3(d) (second sentence) (Capitalization) of the Agreement shall have been accurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date, except (other than a result of a willful breach by the Company) where the failure to be so accurate in all respects would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate that is more than $1,200,000 (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be true disregarded and correct (ii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 6.2(a)) only as of such date; (b) the representations and warranties of the Company set forth in Sections 2.3 (Capitalization) (other than Sections 2.3(a), 2.3(c) (first sentence) and 2.3(d) (second sentence)), 2.19 (Authority; Binding Nature of Agreement), 2.21 (Vote Required) and 2.24 (Financial Advisor) of the Agreement shall have been accurate in all material respects as of the date of the Agreement, and shall be accurate in all material respects at and as of the time Closing Date as if made on and as of such Closing Date (it being understood that, for purposes of determining the Closing as though accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties were shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 6.2(b)) only as of such date). (c) the representations and warranties of the Company set forth in Section 2.5(b) (No Material Adverse Effect) shall have been accurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such time, except Closing Date (it being understood that any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded); (d) the representations and warranties of the Company set forth in Section 3.5 the Agreement (other than those referred to in clauses “(a)”, “(b)” or “(c)”) above) shall have been accurate in all respects as of the date of the Agreement, and shall be updated accurate in all respects at and as provided of the Closing Date as if made on and as of such date, except that any inaccuracies in Section 5.15(asuch representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth above) only as of such date); (be) The the Company and the Principal Shareholder shall have performed and or complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed any covenant or complied with by obligation that the Company is required to comply with or to perform under the Principal Shareholder on or Agreement prior to the Closing Date; (c) The company , or, if not complied with or performed in all material respects, such noncompliance or failure to perform shall have delivered to Parent and Merger Sub a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulationscured; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects received certificates executed on behalf of the Company by the chief executive officer or chief financial officer of the Company, certifying that the conditions set forth in Sections 6.2(a), (b), (c), (d) and shall (e) have been satisfied with the results of their due diligence review in their sole and absolute discretion;satisfied; and (g) The Target Shareholders shall have approved Since the Merger in accordance with the NGCL; and (h) Immediately prior to Closingdate of this Agreement, the aggregate number of Dissenting Target Shares there shall not exceed five percent (5%) have occurred a Material Adverse Effect that shall be continuing as of the aggregate number of outstanding Target SharesClosing Date.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger shall be are subject to the fulfillment satisfaction (or written waiver by Parent or and Merger Sub, at or prior to the Closing, of each Sub if permissible under Law) of the following conditions: (a) The the representations and warranties of the Company set out contained in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of the Company contained in this Agreement that are not so qualified shall be true and correct in all material respects at respects, in each case as of the date hereof and as of the time of Closing Date as though made on the Closing as though Date, except to the extent such representations and warranties were made at and expressly relate to an earlier date, in which case as of such time, except that earlier date. Parent shall have received a certificate signed on behalf of the representations Company by the chief executive officer and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a)the chief financial officer of the Company to such effect; (b) The the Company and the Principal Shareholder shall not have performed and complied failed, in all any material respects respect, to perform or to comply with all covenants, conditions, obligations and agreements any agreement or covenant required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on 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 chief executive officer and the chief financial officer of the Company to such effect; (c) The company there shall not have delivered to been instituted or pending any suit, action or proceeding by any Governmental Entity (i) challenging the acquisition by Parent and or Merger Sub a certificate of any shares of Company Common Stock, seeking to restrain or prohibit the consummation of the Secretary Merger or any other Transactions, or seeking to place limitations on the ownership of the shares of Company Common Stock (or shares of common stock of the Surviving Corporation) by Parent, Merger Sub or any other Affiliate of Parent, (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective Subsidiaries of any portion of any business or of any assets of the Company, Parent or any of their respective Subsidiaries, or to compel the Company, Parent or any of their respective Subsidiaries to divest or hold separate any portion of any business or of any assets of the Company, Parent or any of their respective Subsidiaries, in each case, as a result of the Merger or any of the other Transactions or (iii) seeking to prohibit Parent or any of its Affiliates from effectively controlling in any respect the business or operations of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied;or any of its Subsidiaries; and (d) The since the date hereof, a Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares Material Adverse Effect shall not exceed five percent (5%) of the aggregate number of outstanding Target Shareshave occurred and be continuing.

Conditions to Obligations of Parent and Merger Sub. The Solely if the Offer Termination shall have occurred or the Acceptance Time shall not have occurred, the obligations of Parent and Merger Sub to consummate effect the Merger shall be further subject to the fulfillment or written waiver by Parent or Merger Subsatisfaction, at or prior to the Closing, of each of the following conditions: (a) The the representations and warranties of the Company set out forth in this Sections 3.3(a), 3.3(c) (first sentence), and 3.3(d) (second sentence) (Capitalization) of the Agreement shall have been accurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such Closing Date, except (other than a result of a willful breach by the Company) where the failure to be so accurate in all respects would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate that is more than $1,000,000 (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be true disregarded and correct (ii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 7.2(a)) only as of such date; (b) the representations and warranties of the Company set forth in Sections 3.3 (Capitalization) (other than Sections 3.3(a), 3.3(c) (first sentence) and 3.3(d)(second sentence), 3.19 (Authority; Binding Nature of Agreement), 3.20 (Vote Required) and 3.24 (Financial Advisor) of the Agreement shall have been accurate in all material respects as of the date of the Agreement, and shall be accurate in all material respects at and as of the time Closing Date as if made on and as of such Closing Date (it being understood that, for purposes of determining the Closing as though accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties were shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth in this Section 7.2(b)) only as of such date); (c) the representations and warranties of the Company set forth in Section 3.5(b) (No Material Adverse Effect) shall have been accurate in all respects as of the date of the Agreement and shall be accurate in all respects at and as of the Closing Date as if made on and as of such time, except Closing Date (it being understood that any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded); (d) the representations and warranties of the Company set forth in Section 3.5 the Agreement (other than those referred to in clauses “(a)”, “(b)” or “(c)”) above) shall have been accurate in all respects as of the date of the Agreement, and shall be updated accurate in all respects at and as provided of the Closing Date as if made on and as of such date, except that any inaccuracies in Section 5.15(asuch representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have, a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, (ii) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured (subject to the applicable materiality standard as set forth above) only as of such date); (be) The the Company and the Principal Shareholder shall have performed and or complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed any covenant or complied with by obligation that the Company is required to comply with or to perform under the Principal Shareholder on or Agreement prior to the Closing Date; (c) The company , or, if not complied with or performed in all material respects, such noncompliance or failure to perform shall have delivered to Parent and Merger Sub a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulationscured; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects received certificates executed on behalf of the Company by the chief executive officer or chief financial officer of the Company, certifying that the conditions set forth in Sections 7.2(a), (b), (c), (d) and shall (e) have been satisfied with the results of their due diligence review in their sole and absolute discretion;satisfied; and (g) The Target Shareholders shall have approved Since the Merger in accordance with the NGCL; and (h) Immediately prior to Closingdate of this Agreement, the aggregate number of Dissenting Target Shares there shall not exceed five percent (5%) have occurred a Material Adverse Effect that shall be continuing as of the aggregate number of outstanding Target SharesClosing Date.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the Merger shall be is further subject to the fulfillment satisfaction (or written waiver by Parent or Merger Sub, if permissible under Law) at or prior to the Closing, of each Closing of the following conditions: (a) The the representations and warranties of the Company set out contained in this Agreement (i) Section 4.21 shall be true and correct accurate in all material respects at and (ii) Section 4.1 through Section 4.20 shall be true and accurate as of the date of this Agreement and on and as of the time Closing Date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which representations and warranties need only be true and accurate as of such date or with respect to such period); provided, however, that the condition set forth in Section 7.2(a)(ii) shall be deemed to have been satisfied unless the impact of the Closing as though failure of any of such representations and warranties were made at (when read without exception or qualification as to materiality or Material Adverse Effect) to be so true and as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a)accurate has had a Material Adverse Effect; (b) The the Company and the Principal Shareholder shall have performed and or complied in all material respects with all covenants, conditions, obligations and agreements or covenants required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing DateClosing; (c) The company the Company shall have delivered to Parent and Merger Sub a certificate of certificate, dated the Secretary Closing Date, signed by an executive officer of the Company and the Principal Shareholder to the effect certifying that the conditions set forth in Section 6.2(a7.2(a) and (bSection 7.2(b) hereof have been satisfied; (d) The not more than 20% of the shares of Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating Common Stock outstanding immediately prior to the Target Shares in accordance with 2.2(a)(iEffective Time (for this purpose assuming the exercise for Company Class A Common Stock immediately prior to the Effective Time of all then outstanding Company Options) & (ii);shall be Dissenting Shares; and (e) The GAAP Financial Statements and records from the date of this Agreement through the Company shall be of such quality thatEffective Time, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares there shall not exceed five percent (5%) of the aggregate number of outstanding Target Shareshave occurred any event that has had a Material Adverse Effect.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger shall be subject to the fulfillment or written waiver by Parent or Merger Sub, at or prior to the Closing, of each of the following conditions: (a) The representations and warranties of the Company and the Principal Shareholder set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time, except that the representations and warranties set forth in Section 3.5 3.5(a) shall be updated as provided in Section 5.15(a5.13(a); (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or prior to the Closing Date; (c) The company Company shall have delivered to Parent and Merger Sub a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Company Shares and any agreement relating to the Target Company Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Company shall have delivered to Parent and Merger Sub the Audited Financial Statements and records of the Company shall be of such quality that, described in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulationsSection 5.10; (f) The Company shall have delivered to Parent and Merger Sub the Additional Company Information described in Section 5.11; (g) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (gh) The Target Company Shareholders shall have approved the Merger in accordance with the NGCLDGCL; (i) No Company Shareholder shall have asserted any dissenters’ rights under the DGCL; (j) The Company shall have caused those warrants identified on Schedule 6.2(j) to be terminated; (k) The Company shall have caused that certain Share Repurchase Agreement to be terminated; (l) The Company shall have obtained the consent from each holder of a Company Option or Warrant to the amendment of such Company Option or Warrant pursuant to Section 1.6 of this Agreement (unless such consent is not required under the terms of the applicable agreement, instrument or plan); and (hm) Immediately prior The Company shall have delivered to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) Parent Investment Letters from each of the aggregate number of outstanding Target SharesCompany Shareholders identified in Schedule 3.5(a).

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the First Merger shall also be subject to the fulfillment satisfaction or written waiver of the following conditions by Parent or Merger Sub, at or prior to the Closing, of each of the following conditions: (a) (i) The representations and warranties of the Company set out forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are qualified by a “Material Adverse Effect” qualification shall be true and correct in all respects as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in Article IV (other than Sections 4.12(b) and 4.4(a)) which are not qualified by a “Material Adverse Effect” qualification shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except for such failures to be true and correct as would not have, in the aggregate, a Material Adverse Effect on the Company, (iii) the representations and warranties set forth in Section 4.4(a) shall be true and correct in all material respects at on the date hereof and as of the time of on the Closing Date as though such representations and warranties were if made at on and as of such timedates, except that other than with respect to any issuances permitted pursuant to this Agreement, and (iv) the representations and warranties representation set forth in Section 3.5 4.12(b) shall be updated true and correct in all respects on the Closing Date as provided if made on and as of such date; provided, however, that, with respect to clauses (i), (ii), (iii) and (iv) above, representations and warranties that are made as of a particular date or period shall be true and correct (in Section 5.15(athe manner set forth in clause (i);, (ii), (iii) or (iv), as applicable) only as of such date or period. (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement of its covenants hereunder to be performed or complied with by the Company or the Principal Shareholder on or it prior to the Closing Date;Effective Time in all material respects through the Closing. (c) The company shall have delivered to Parent and Merger Sub a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent a certificate duly executed by the Company’s chief executive officer and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records chief financial officer on behalf of the Company to the effect that each of the conditions specified above in Sections 6.2(a) and 6.2(b) is satisfied in all respects. (d) Parent shall be of such quality have received from Lxxxxx & Wxxxxxx LLP, counsel to Parent, a written opinion dated the Closing Date to the effect that, in on the judgment of Parent in its sole and absolute discretion, an audit basis of the Financial Statements can be completed within forty-five (45) days after the Closing facts, representations and assumptions set forth or referred to in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the businesssuch opinion, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closingfor United States federal income tax purposes, the aggregate number Transaction will constitute a “reorganization” within the meaning of Dissenting Target Shares shall not exceed five percent (5%Section 368(a) of the aggregate number of outstanding Target SharesCode. In rendering such opinion, counsel to Parent shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in the Tax Representation Letters described in Section 5.1(l).

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of each of Parent and Merger Sub to consummate the Merger shall be is subject to the fulfillment or written waiver by Parent or Merger Sub, at or prior to the Closing, of each satisfaction of the following additional conditions:. Parent and Merger Sub may waive any such condition and proceed to Closing, without waiving any of their rights hereunder. (a) The this Agreement and the Merger shall have received the Requisite Shareholder Approval by the affirmative vote at a meeting of the Company Shareholders duly called and convened for the purpose of not less than eighty-five percent (85%) of the Company Shares entitled to vote on such matter or by the written consent of Company Shareholders holding not less than eighty-five percent (85%) of the Company Shares issued and outstanding on the record date for such vote or written consent, including, without limitation, the affirmative vote or written consent of all Company shares held of record on such date by each of Xxxx X. Xxxxx, Hummer Winblad Venture Partners IV, L.P., Hummer Winblad Venture Partners V, L.P., Hummer Winblad Venture Partners VI, L.P., and Xxxxxx Xxxxxxx, and not more than ten percent (10%) of the Company Shares shall be eligible for treatment as Dissenting Shares; (b) the Company shall have obtained (and shall have provided true, correct and complete copies thereof to Parent) all of the novations, assignments, waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.4 which are required on the part of the Company; (c) after giving effect to the Company Disclosure Schedule, but not to any disclosure supplement, each of the representations and warranties of the Company set out forth in this Agreement shall be true and correct except for such breaches of representations or warranties which individually or in all material respects at and as of the time of aggregate would not have a Company Material Adverse Effect; provided however that to the Closing as though extent such representations and warranties were are specifically made at as of a particular date, such representations and warranties shall be true and correct as of such time, except date); and provided further that the representations and warranties set forth in Section 3.5 2.35 (Disclosure) shall be updated true and correct on the Closing Date as provided in Section 5.15(a)though made on and as of such date; (bd) The the Company and the Principal Shareholder shall have performed and or complied in all material respects with all its agreements and covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on under this Agreement as of or prior to the Closing DateClosing; (ce) The company shall have delivered to Parent all Options, Warrants and Merger Sub a certificate of the Secretary other securities or instruments exercisable for, exchangeable for or convertible into (x) any equity security of the Company and or (y) exercisable for, exchangeable for or convertible into any security or instrument exercisable for, exchangeable for or convertible into any equity security of the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof Company shall have been satisfiedterminated or exercised for Company Shares; (df) The no Legal Proceeding (other than as disclosed on the Company Disclosure Schedule) shall be pending or threatened which if determined adversely to the Company would have, individually or in the aggregate, a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (g) since the Agreement Date there shall not have occurred a Company Material Adverse Effect; (h) to the extent that any Company Debt is to be paid by Parent or the Surviving Corporation, Parent shall have received all appropriate UCC-3 Termination Statements, if any, ready for filing from any Company Lender; (i) all loans (other than advances of business expenses made in the Ordinary Course of Business in accordance with Company policy) made by the Company to any Company Shareholder, director, officer or employee shall have been paid in full or otherwise discharged; (j) the Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares Company Certificate; (k) each existing employment agreement between the Company and any officer, director or employee of the Company shall have been terminated effective as of the Closing and each of Xxxxxx Xxxxxxx and Xxxxxxx Xxxx shall have executed and delivered to Parent an executive employment agreement relating to substantially in the Target Shares in accordance with 2.2(a)(i) & forms attached hereto as Exhibit F (iithe “Executive Employment Agreements”); (el) The GAAP Financial Statements Parent shall have received copies of the resignations, effective as of the Effective Time, of each director of the Company; (m) Each of Xxxx X. Xxxxx, Hummer Winblad Venture Partners IV, L.P., Hummer Winblad Venture Partners V, L.P., Hummer Winblad Venture Partners VI, L.P., Xxxxxx Xxxxxxx and records the other Key Employees shall have executed and delivered an Underwriter’s Lock-Up Agreement; (n) Parent shall have received from each of Xxxx X. Xxxxx, Hummer Winblad Venture Partners IV, L.P., Hummer Winblad Venture Partners V, L.P., Hummer Winblad Venture Partners VI, L.P., Xxxxxx Xxxxxxx and the other Key Employees a Mutual Release in favor of the Company shall be of such quality that, substantially in the judgment form of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulationsExhibit H attached hereto; (fo) Parent and Merger Sub shall have completed a due diligence review received an opinion of Xxxxxxx, Xxxxx + Xxxxxx, LLP, counsel to the Company, substantially in the form of Exhibit I attached hereto; (p) Parent shall have received an opinion (the “Tax Opinion”) from Xxxxx Xxxx LLP, counsel to Parent, substantially in the form of Exhibit J attached hereto to the effect that, on the basis of the businessfacts, operationsrepresentations, financial condition and prospects assumptions set forth in such opinion, the transactions contemplated hereby will be treated for federal income tax purposes as an exchange qualifying under Section 351 of the Code or as part of such an exchange, In rendering such opinion, Parent’s counsel may require and rely upon such representations as to factual matters made in certificates of officers of Parent, Merger Sub, the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCLothers; and (hq) Immediately prior to Closing, the aggregate number Parent shall have received such other certificates and instruments (including certificates of Dissenting Target Shares shall not exceed five percent (5%) good standing of the aggregate number Company) in their respective jurisdictions of outstanding Target Sharesorganization and the various foreign jurisdictions in which they are qualified, certified charter documents, certificates as to the incumbency of officers, documents necessary to transfer signing authority for all Company bank accounts and the adoption of authorizing resolutions as it shall reasonably request in connection with the Closing.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger transactions contemplated by this Agreement shall be further subject to the fulfillment satisfaction or written waiver in writing by Parent or Merger Sub, at or prior to the Closing, Closing of each of the following conditions: (a) Except as set forth in the next sentence, the representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein regarding materiality or a Material Adverse Effect other than for purposes of Section 4.9 (first sentence)) 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 such date, except for changes contemplated by this Agreement (unless any such representation or warranty is made only as of a specific date, in which event such representation or warranty shall be true and correct only as of such specific date), provided that this condition shall be deemed to be satisfied unless all such failures of the representations and warranties to be true and correct, in the aggregate, constitute a Material Adverse Effect. The representations and warranties of the Company set out forth in this Agreement Section 4.1 (Existence, Power), Section 4.2 (Authority, Enforceability), Section 4.5(a) (Capitalization) (other than immaterial inaccuracies or deviations not to exceed 5,000 shares of Company Common Stock in the aggregate), clause (ii) of the first sentence of Section 4.9 (Absence of Changes) and Section 4.20 (Brokers) shall be true and correct in all material respects at and as of the time of the Closing Date, as though such representations and warranties were made at on and as of such time, date (except that the for any of such representations and warranties set forth which is made only as of a specific date, in Section 3.5 which event such representation or warranty shall be updated true and correct only as provided in Section 5.15(aof such specific date);. (b) The Company and the Principal Shareholder shall have performed in all material respects the obligations, and complied in all material respects with all the agreements and covenants, conditions, obligations and agreements required by this Agreement to be performed by or complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing DateClosing; (c) The company Parent shall have delivered to Parent and Merger Sub received a certificate of the Secretary an executive officer of the Company and the Principal Shareholder to the effect certifying that the conditions set forth in Section 6.2(a7.2(a) and (bSection 7.2(b) hereof have been satisfied; (d) The All consents, approvals and authorizations of third parties set forth on Section 7.2 of the Company Disclosure Schedule shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii)been obtained; (e) The GAAP Financial Statements and records Since the date of the Company this Agreement, there shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations;not have been any Material Adverse Effect; and (f) Concurrently with the Closing and upon concurrent receipt of sufficient funds from Parent or Parents’ lenders, as and Merger Sub to the extent needed, the Company shall have completed a due diligence review redeemed all of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, outstanding Convertible Notes for the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Sharesprincipal amount thereof, plus accrued and unpaid interest thereon.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be further subject to the fulfillment satisfaction or written waiver by Parent or Merger Sub, at or prior to the Closing, of each Effective Time of the following conditions: (a) The (i) Each of the representations and warranties of the Company set out forth in this Agreement Section 3.3 (other than immaterial inaccuracies in the second, third, fourth and fifth sentences of Section 3.3(a)) shall be true and correct, (ii) each of the representations and warranties of the Company set forth in Sections 3.1, 3.4, 3.16 and 3.17 shall be true and correct in all material respects at and (ii) each of the other representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein regarding materiality or a Company Material Adverse Effect or any similar standard or qualification) shall be true and correct except to the extent that all failures of such representations and warranties to be so true and correct (disregarding all qualifications and exceptions contained therein regarding materiality or a Company Material Adverse Effect or any similar standard or qualification), individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect, in each case of clauses (i) through (iii) above as of the date of this Agreement and as of the time of the Closing Date as though such representations and warranties were if made at and as of such time, time (except that the for representations and warranties set forth in Section 3.5 made only as of a specified date, which shall be updated true and correct only as provided in Section 5.15(aof the specified date);. (b) The Company and the Principal Shareholder shall have performed in all material respects the obligations, and complied in all material respects with all the agreements and covenants, conditions, obligations and agreements required by this Agreement to be performed by or complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing Date;. (c) The company Parent shall have delivered to Parent and Merger Sub received a certificate of the Secretary Chief Executive Officer or the Chief Financial Officer of the Company and the Principal Shareholder to the effect Company, certifying that the conditions set forth in Section 6.2(aSections 7.2(a) and (b) hereof have been satisfied;. (d) Parent shall be reasonably satisfied (having taken appropriate steps to try to assess its status) that it will qualify as a "foreign private issuer" (as such term is defined in Rule 405 promulgated under the Securities Act and Rule 3b-4 promulgated under the Exchange Act) at the time of the Closing; provided that the condition specified by this Section 7.2(d) shall automatically be deemed to be satisfied on April 28, 2006, if it has not previously been satisfied or waived by Parent and, assuming that all other conditions to Closing specified in this Article VII have been satisfied or waived (excluding conditions that, by their terms, cannot be satisfied until the Closing, but the Closing shall be subject to the satisfaction or waiver of those conditions), the Closing shall take place on such date. (e) The Company shall have delivered taken, and shall have taken all actions necessary or appropriate for it to Parent be able to take, a charge on its books to its earnings in an amount equal to any probable and Merger Sub any certificates evidencing estimable US and foreign Tax costs (as determined pursuant to U.S. generally accepted accounting principles) in respect of the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of Reorganization; provided that the Company shall be of such quality thatunder no obligation to make any determination to effect the Reorganization or to incur any charge on its books until all other conditions set forth in this Article VII to the Company's, in Parent's or Merger Sub's obligation to effect the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with or waived (excluding conditions that, by their terms, cannot be satisfied until the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Shares).

Conditions to Obligations of Parent and Merger Sub. The respective obligations of Parent and Merger Sub to consummate effect the Merger shall be subject to the fulfillment satisfaction or written waiver by Parent or Merger Sub, at or prior to the Closing, of each Effective Time of the following conditions: (a) The the representations and warranties of the Company set out forth in this Agreement shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Company Material Adverse Effect”, “in all material respects at respects”, “in any material respect”, “material” or “materially”) as of the Effective Time as though made on and as of the time Effective Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), after giving effect to any updates made to the Closing as though Company Schedule of Exceptions made on or after the date hereof and prior to Closing, in each case except where the failure of any such representations and warranties were made at to be so true and as of such timecorrect would not, except that or would not reasonably be expected to, individually or in the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a)aggregate, have a Company Material Adverse Effect; (b) The the Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, its obligations pursuant to Article 5 and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or prior to the Closing DateArticle 6; (c) The company the outstanding indebtedness of the Company shall not exceed Five Million Four Hundred Thousand Dollars ($5,400,000) which shall exclude any capital leases, leasehold improvements, insurance premium financing and financing of the AT&T equipment lease of the Company or its Subsidiaries and which shall be calculated in accordance with Section 6.12; (d) the Company shall have obtained and delivered to Parent and Merger Sub a certificate of the Secretary any consent, approval, authorization, permit, action, or notification set forth on Schedule 3.5(a) of the Company Schedule of Exceptions which (i) shall be in form and the Principal Shareholder substance reasonably satisfactory to Parent, (ii) shall not be subject to the effect satisfaction of any condition that has not been satisfied or waived, and (iii) shall be in full force and effect; (e) stockholders of the Company constituting the Company Requisite Vote shall have approved this Agreement; (f) the Voting Agreements shall have been executed and delivered by Voting Agreement Stockholders and such Voting Agreements shall be in full force and effect; (g) holders owning no more than five percent (5%), in the aggregate, of the outstanding Company Common Stock shall have perfected and not withdrawn a demand for dissenters’ rights pursuant to the DGCL and Section 2.4; (h) all planned severance, change of control payments, accelerations, accrued compensation, bonus, and vacation relating to any and all employees and consultants shall not be in excess of amounts set forth in Schedule 7.2(h) of the Company Schedule of Exceptions on the date hereof; Mxxxxxx Xxxx shall have entered into an employment agreement with the Parent and Company in accordance with the terms set forth on Exhibit 7.2(h); (i) the Parent shall have received Certificates executed on behalf of the Company by the chief executive officer of the Company certifying that the conditions set forth in Section 6.2(a7.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Shares.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and otherwise consummate the Merger shall be Transactions are subject to the fulfillment satisfaction or written waiver by Parent or Merger Subwaiver, at or prior to the Closing, of each of the following conditions: (a) The the representations and warranties of the Company set out contained in this Agreement shall be true and correct in all material respects at and as of the time of Closing Date as though made on the Closing as though Date (except to the extent such representations and warranties were made at and relate to an earlier date, in which case as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(aearlier date); (b) The the Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder it under this Agreement on or prior to the Closing Date; (c) The company there has not occurred any Company Material Adverse Effect; and (d) the Company shall have deliver or cause to be delivered to Parent and Merger Sub the following: (i) a certificate of the Secretary Company dated as of the Company and the Principal Shareholder Closing Date to the effect that the conditions set forth in Section 6.2(aSections 5.2(a), (b) and (bc) hereof have been satisfied; (dii) The a certificate, validly executed by an officer of the Company shall have delivered (in such Person’s capacity as such), certifying as to Parent (i) the terms and Merger Sub any certificates evidencing effectiveness of the Target Shares certificate of incorporation and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & bylaws of the Company, (ii) valid adoption of the resolutions of the board of directors of the Company (whereby the Merger, this Agreement and the Transactions were unanimously approved by the board of directors of the Company) and (iii) the valid adoption of the resolutions of the stockholders of the Company constituting the Required Stockholder Votes (whereby the Merger, this Agreement and the Transactions were approved); (eiii) The GAAP Financial Statements and records a certificate of good standing of the Company shall be from the Secretary of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit State of the Financial Statements can be completed State of Delaware dated within forty-five (455) business days after of the Closing in accordance with applicable SEC rules and regulationsDate; (fiv) Parent and Merger Sub shall have completed a due diligence review written resignations of the businessofficers and directors of the Company, operationsto be effective as of the Effective Time, financial condition and prospects to the extent requested by Parent; (v) copies of Joinder Agreements executed by holders of at least 90% of the outstanding shares of Company Preferred Stock as of immediately prior to the Effective Time; (vi) copies of Company Common Stock Acknowledgements executed by holders of at least 90% of the outstanding shares of Company Common Stock as of immediately prior to the Effective Time; (vii) a copy of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretionAudit; (gviii) The Target Shareholders shall have approved the Merger in accordance with Consideration Spreadsheet; (ix) the NGCLNerveda Non-Compete, duly executed by Nerveda, LLC; and (hx) Immediately prior to Closingthe Escrow Agreement, duly executed by the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target SharesSecurityholder Representative.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the Merger shall be closing of the transaction contemplated in this Agreement is subject to the fulfillment satisfaction or written waiver by Parent or Merger Subwaiver, at or prior to before the Closing, of each of the following conditionsconditions set forth in this Section 6.1: (a) The none of the parties hereto will be subject to any Order that prohibits the consummation of the transactions contemplated by this Agreement; (b) an officer of the Company shall have executed and delivered to Parent and Merger Sub a certificate stating that (i) the representations and warranties of the Company set out contained in this Agreement shall be Sections 4.1.2 [Authorization; Enforceability] and 4.2 [Capital Stock] are true and correct in all material respects as of the date of this Agreement and at and as of the time of the Closing as though then made (except in each case for such representations and warranties were that are as of another date, which shall be true and correct as of such date), (ii) the representations and warranties of Company contained in Article 4 other than those in Sections 4.1.2 [Authorization; Enforceability] and 4.2 [Capital Stock], without regard to any materiality or material adverse effect qualifier contained therein, are true and correct on and as of the Closing Date as if made at and as of such time, the Closing Date (except that the for any representations and warranties set forth in Section 3.5 made as of a specified date, which shall be updated true and correct as provided of the specified date), except where the failure of such representations and warranties to be true and correct has not had, individually or in Section 5.15(a); the aggregate, a Material Adverse Effect; and (biii) The the Company and the Principal Shareholder shall has performed or caused to have been performed and complied in all material respects with all covenants, conditions, obligations of the covenants and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or Acquired Companies prior to the Closing DateClosing; (c) The company there shall not have delivered occurred any facts, events, developments or circumstances that constitutes, or would be substantially likely to Parent and Merger Sub constitute, a certificate of the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfiedMaterial Adverse Effect; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing shall have received Payoff Letters with respect to the Target Shares Senior Debt, the Acquisition Notes and any agreement other Closing Indebtedness in excess of One Hundred Thousand Dollars ($100,000) in the aggregate (other than the Senior Notes which is covered in clause (3) below), which provide for the full and final release of any and all Liens relating to such Indebtedness on the Target Shares assets of the Acquired Companies following satisfaction of the terms contained in accordance with 2.2(a)(i) & (ii)such Payoff Letters; (e) The GAAP Financial Statements and records of the Company shall be have (i) exercised the covenant of defeasance option under the Indenture; (ii) mailed a notice of redemption to each Holder of Securities (as defined in the Indenture; and (ii) complied with all conditions and requirements of the Indenture with respect to such exercise of the covenant defeasance option and the delivering of such quality that, in the judgment notice of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations;redemption. (f) Parent and Merger Sub shall have completed received a due diligence review certificate of corporate good standing as of the business, operations, financial condition and prospects most recent practicable date for each Acquired Company from the Secretary of State of the Company and shall have been satisfied with the results applicable state of their due diligence review in their sole and absolute discretionincorporation; (g) The Target Shareholders Parent and Merger Sub shall have approved received duly executed Escrow Agreements; (h) Parent and Merger Sub shall have received a duly executed Certificate of Merger; (i) Parent and Merger Sub shall have received from each Stockholder a duly executed Letter of Transmittal and all required deliveries thereunder, including stock certificates for the Shares; (j) Parent and Merger Sub shall have received from each Stockholder a duly executed release, nondisclosure, noninterference and non-hire agreement, substantially in accordance with the NGCLform attached hereto as Exhibit E; (k) Parent and Merger Sub shall have received duly executed termination agreements related to each of the following documents: (i) the Company’s 1998 Stock Incentive Plan, (ii) Amended and Restated Registration Rights Agreement dated November 23, 2004 among EFF, GE Investment Private Placement Partners II (“GEIPPPII”), Warburg, Pxxxxx Ventures, LP (“WPV”), DFA and Cxxxx Xxxxxxx, and (iii) Amended and Restated Stockholders Agreement dated November 23, 2004 among the Company, GEIPPPII, WPV, DFA and Cxxxx Xxxxxxx; (l) Parent and Merger Sub shall have received the written legal opinion of counsel for the Company, addressed to Parent and Merger Sub as of the Closing Date, in form attached hereto as Exhibit F; and (hm) Immediately prior Parent and Merger Sub shall have received the Closing Certificate pursuant to ClosingSection 3.4.1 hereof. Any agreement or document to be delivered to Parent and Merger Sub pursuant to this Section 6.1, the aggregate number form of Dissenting Target Shares which is not attached to this Agreement as an exhibit, shall not exceed five percent (5%) of the aggregate number of outstanding Target Sharesbe in form and substance reasonably satisfactory to Parent and Merger Sub.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be subject to the fulfillment satisfaction or written waiver by Parent or Merger Subwaiver, at or prior to the Closing, of each of the following conditions: (a) The representations and warranties of the Company contained in: (i) Sections 3.1, 3.3(a), 3.25 and 3.26 shall be true and correct in all respects as of the Agreement Date and as of the Effective Time, except to the extent such representation and warranty expressly relates to an earlier time (in which case on and as of such earlier time); (ii) Sections 3.4(a), 3.4(b) and 3.4(c) shall be true and correct in all respects as of the Agreement Date and as of the Effective Time (except for any inaccuracies in such representations and warranties that do not individually or in the aggregate increase the aggregate consideration required to be paid by Parent and/or Merger Sub under Article II by more than a de minimis amount); and (iii) any other representation and warranty of the Company set out forth in this Agreement shall be true and correct in all material respects at as of the Effective Time as though made on and as of the time of the Closing as though Effective Time (other than such representations and warranties were that are made at as of a specific date, which need only be true and correct as of such timespecified date), except that in the case of this clause (iii) where the failure of such representations and warranties set forth warranties, individually or in Section 3.5 shall the aggregate, to be updated true and correct as provided in Section 5.15(a);of the Effective Time (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect”) has not had a Company Material Adverse Effect. (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, its obligations and agreements required by covenants contained in this Agreement to be performed or complied with by the Company or the Principal Shareholder on at or prior to the Closing Date;Closing. (c) Since the Agreement Date, there shall not have occurred any event that has had, or would reasonably be expected to have, a Company Material Adverse Effect. (d) The company Company shall have delivered to Parent and Merger Sub a statement described in Treasury Regulations Section 1.1445-2(c)(3) certifying that none of the interests in the Company being acquired pursuant to this Agreement are U.S. real property interests for purposes of Code Section 1445. (e) The Company shall have provided to Parent a certificate of dated the Secretary Closing Date signed on its behalf by the chief financial officer of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and (bSection 6.2(c) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Shares.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger Transactions shall be subject to the fulfillment or written waiver by Parent or Merger SubParent’s waiver, at or prior to the Closing, of each of the following conditions: (a) The representations and warranties of Company contained in Article III (other than the Fundamental Representations but including Section 3.04 (No Conflicts; Consents) and Section 3.17(a) (Taxes) of the Company) must be true and correct in all respects (without giving effect to any materiality or Material Adverse Effect or similar qualifications contained therein) as of the date hereof and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case, as of such date), except (A) where the failure of such representations and warranties set forth in Article III to be so true and correct, individually or in the aggregate, would not have, or would not be reasonably expected to have, a Material Adverse Effect on the Company set out in this Agreement and its Subsidiaries taken as a whole. The Fundamental Representations (other than Section 3.04 (No Conflicts; Consents) and Section 3.17(a) (Taxes)) of the Company shall be true and correct in all material respects at (other than de minimis deviations which are immaterial) on and as of the time of date hereof and on the Closing Date with the same effect as though such representations and warranties were made at and as of such time, except that the representations and warranties set forth in Section 3.5 shall be updated as provided in Section 5.15(a);date. (b) The Company and the Principal Shareholder Securityholders’ Representative shall have duly performed and complied in all material respects with all covenantsagreements, conditions, obligations covenants and agreements conditions required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or it prior to or on the Closing Date;. (c) The company Parent shall have delivered to Parent received a certificate, dated the Closing Date and Merger Sub a certificate signed by an authorized officer of the Secretary Company, that each of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a6.02(a) and (bSection 6.02(b) hereof have been satisfied;. (d) The Company Parent shall have delivered to Parent and Merger Sub any certificates evidencing received from the Target Shares and any agreement relating to Company or the Target Shares Securityholders’ Representative the deliverables described in accordance with 2.2(a)(i) & (iiSection 2.07(b);. (e) The GAAP Financial Statements Stockholder Approval shall have been obtained and records of the Company shall be of such quality that, in the judgment of delivered to Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days Business Days after the Closing date hereof, and shall at all times thereafter remain in accordance with applicable SEC rules full force and regulations;effect. (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and The Restrictive Covenants Agreements shall have been satisfied with the results of their due diligence review delivered to Parent and shall at all times thereafter remain in their sole full force and absolute discretion;effect. (g) The Target Shareholders No more than 5% of the Company’s Stockholders (on a fully diluted basis and assuming for such purposes, all Optionholders exercised all of their Options into Company Shares) shall have approved demanded appraisal of such Stockholders’ Company Shares pursuant to Section 262 of the Merger in accordance with the NGCL; andDGCL. (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares There shall not exceed five percent (5%) of the aggregate number of outstanding Target Shares.have occurred a Material Adverse Effect. 0000-0000-0000.4

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Merger shall be further subject to the fulfillment satisfaction or written waiver by Parent or Merger Sub, at or prior to the Closing, Effective Time of each of the following conditions: (a) The (i) the representations and warranties of the Company set out forth in this Agreement Sections 3.3(a), (b) and (c) shall each be true and correct in all material respects at in each case as of the date of this Agreement and as of the time Effective Time as though made as of the Closing as though such Effective Time (except those representations and warranties were made at that speak of an earlier date, which shall be true and correct as of such timeearlier date) (provided, except that for purposes of this Section 7.2(a) only, the representations and warranties of the Company set forth in Sections 3.3(a), (b) and (c) shall collectively be deemed satisfied if the aggregate number of outstanding shares of Company Common Stock underlying the Company Options and Restricted Stock Units set forth in Sections 3.3(a), (b) and (c) is inaccurate by no more than an immaterial amount) and (ii) the representations and warranties of the Company in this Agreement (other than the representations and warranties set forth in Section 3.5 Sections 3.3(a), (b) and (c)) shall be updated true and correct (without giving effect to any “materiality” or Material Adverse Effect qualifications contained therein), in each case as provided of the date of this Agreement and as of the Effective Time as though made as of the Effective Time (except those representations and warranties that speak of an earlier date, which shall be true and correct as of such earlier date), except where the failure of any such representations and warranties referred to in Section 5.15(a)clause (ii) above to be so true and correct, individually or in the aggregate, would not result in a Company Material Adverse Effect; (b) The the Company and the Principal Shareholder shall have performed in all material respects the obligations, and complied in all material respects with all the agreements and covenants, conditions, obligations and agreements required by this Agreement to be performed by or complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing DateEffective Time; (c) The company Parent shall have delivered to Parent and Merger Sub received a certificate of the Secretary chief executive officer or the chief financial officer of the Company and the Principal Shareholder to the effect Company, certifying that the conditions set forth in Section 6.2(aSections 7.2(a) and (b7.2(b) hereof have been satisfied; and (d) there shall not be any action, investigation, proceeding or litigation instituted, commenced, pending or threatened by or before any Governmental Entity relating to the Merger, the Mortgage Business Sale or any of the other transactions contemplated by this Agreement in which a Governmental Entity is a party that would or is reasonably likely to (i) restrain, enjoin, prevent, restrict, prohibit or make illegal the acquisition of some or all of the shares of Company Common Stock by Parent or Merger Sub or the consummation of the Merger or the other transactions contemplated by this Agreement, or (ii) result in a Governmental Investigation or material Governmental Damages being imposed on Parent or the Surviving Corporation or any of their respective Affiliates; (de) The Merger and the other transactions contemplated by this Agreement and the Mortgage Business Sale Agreement shall have been approved by the New York State Insurance Department; (f) The consents, approvals, notifications, or certificates listed in Section 7.2(f) of the Company Disclosure Schedule hereto shall have been obtained and copies of such consents shall have been delivered by Company to Parent; (g) The Company shall have filed all forms, reports, and other documents required to be filed with the SEC with respect to periods from January 1, 2006 through the Effective Time; (h) The 2006 Audited Company Financial Statements shall not reflect a consolidated financial condition or results of operations of the Company, its consolidated Subsidiaries and its consolidated Company Joint Ventures that is different from the consolidated financial condition or results of operations of the Company, its consolidated Subsidiaries and its consolidated Company Joint Ventures reflected in the Unaudited Company Financial Statements, unless such difference would not constitute, or would not reasonably be expected to constitute, a Material Adverse Effect; (i) All of the conditions to the obligations of the purchaser under the Mortgage Business Sale Agreement to consummate the Mortgage Business Sale (other than the condition that the Merger shall have been consummated) shall have been satisfied or waived in accordance with the terms thereof, and such purchaser shall otherwise be ready, willing and able (including with respect to access to financing) to consummate the transactions contemplated thereby; and (j) The Company shall have delivered to Parent the Mortgage Business Purchaser Acknowledgement Agreements fully executed by the applicable Agency and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality that, in and/or the judgment of Parent in its sole and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target SharesMortgage Entity.

Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger contemplated by this Agreement shall be subject to the fulfillment or written waiver by Parent or Merger SubParent’s waiver, at or prior to before the Closing, of each of the following conditions: (ai) The representations and warranties of the Company set out 6th Wave in Section 4 of this Agreement shall be true and correct in all material respects at (without giving effect to any materiality or Material Adverse Effect qualifications contained therein) on and as of the time date hereof and on and as of the Closing Date with the same effect as though such representations and warranties were made at and as of such time, date (except that the those representations and warranties set forth in Section 3.5 that address matters only as of a specified date, the accuracy of which shall be updated determined as provided of that specified date in Section 5.15(aall respects);, except as would not have, individually or in the aggregate, a Material Adverse Effect on 6th Wave. (bii) The Company and the Principal Shareholder 6th Wave shall have duly performed and complied in all material respects with all covenantsagreements, conditions, obligations covenants and agreements conditions required by this Agreement to be performed or complied with by the Company it before or the Principal Shareholder on or prior to the Closing Date;. (ciii) The company 6th Wave Stockholders holding not less than 90% of the outstanding 6th Wave Common Stock and 6th Wave Preferred Stock shall have delivered executed Support Agreements and shall each have duly performed and complied in all material respects with all agreements, covenants and conditions required by the Support Agreements to Parent and Merger Sub a certificate of be performed or complied with by them before or on the Secretary of the Company and the Principal Shareholder to the effect that the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied;Closing Date. (div) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & (ii); (e) The GAAP Financial Statements and records of the Company shall be of such quality thatNo action, in the judgment of Parent in its sole and absolute discretionclaim, an audit of the Financial Statements can be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review of the business, operations, financial condition and prospects of the Company and proceeding or investigation shall have been satisfied with commenced against 6th Wave or the results of their due diligence review in their sole and absolute discretion;6th Wave Stockholders that, if successful, would prevent the Closing. (gv) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) more than 10% of the aggregate number issued and outstanding 6th Wave Common Stock and 6th Wave Series A Preferred Stock. (vi) All items required to be delivered by 6th Wave at Closing pursuant to Section 2(s)(i) shall have been received by Parent. (vii) The Escrow Agreement shall have been executed and delivered by the Escrow Agent. (viii) Each of outstanding Target Sharesthe holders of 6th Wave Options shall have consented to the treatment of the 6th Wave Options specified in Section 2(h)(iv). (ix) Each of the holders of 6th Wave Warrants shall have consented to the treatment of the 6th Wave Warrants specified in Section 2(h)(v). (x) Each of Xxx Xxxxxxxx, Xxxxxxx XxXxxx and Xxxxx Xxxxxxx shall have waived all of their respective rights to receive any cash payments pursuant to any change of control or similar provisions of any employment or similar agreement to which 6th Wave is a party. (xi) From the date of this Agreement, there shall not have occurred any Material Adverse Change in respect of 6th Wave, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, would reasonably be expected to result in a Material Adverse Change in respect of 6th Wave.

Conditions to Obligations of Parent and Merger Sub. The obligations obligation of Parent and Merger Xxxxxx Sub to consummate the Merger shall be transactions contemplated by this Agreement is subject to the fulfillment satisfaction, or written the waiver in Parent’s sole and absolute discretion, of all the following further conditions: (a) The Company shall have duly performed or complied with, in all material respects, all of its covenants, agreements and obligations hereunder required to be performed or complied with (without giving effect to any “in all material respects” qualifiers contained therein) by Parent or Merger Sub, the Company at or prior to the Closing, of each of the following conditions:Closing Date. (ab) The representations and warranties of the Company set out contained in this Agreement shall be true and correct in all material respects at as of the date of this Agreement and as of the time of the Closing Date, as though such representations and warranties were if made at and as of such timedate (except to the extent that any such representation and warranty is made as of a specific date, except that the representations in which case such representation and warranties set forth in Section 3.5 warranty shall be updated true and correct at and as provided in Section 5.15(aof such specific date); (b) The Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by the Company or the Principal Shareholder on or prior to the Closing Date;. (c) The company Since the date of this Agreement, there shall not have occurred and be continuing any Effect in respect of the Company Group that individually, or together with any other Effect, has had or would reasonably be expected to have a Material Adverse Effect on the Company. (d) Parent shall have delivered to received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company, in such Person’s capacity as an officer of the Company and not in such Person’s individual capacity, certifying the accuracy of the provisions of the foregoing clauses (a), (b), and (c) of this Section 9.2. (e) Parent and Merger Sub shall have received a certificate certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of: (i) the Principal Shareholder to Company Articles of Incorporation, certified as of a recent date by the effect that Secretary of State of the conditions set forth in Section 6.2(a) and (b) hereof have been satisfied; (d) The Company shall have delivered to Parent and Merger Sub any certificates evidencing the Target Shares and any agreement relating to the Target Shares in accordance with 2.2(a)(i) & State of Maryland; (ii); ) the Company Bylaws; (eiii) The GAAP Financial Statements and records copies of resolutions duly adopted by the Board of Directors of the Company shall be approving this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Stockholder Resolutions; and (iv) a certificate of such quality that, in the judgment of Parent in its sole and absolute discretion, an audit good standing of the Financial Statements can be completed within forty-five (45) days after Company, certified as of a recent date by the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review Secretary of State of the business, operations, financial condition and prospects State of the Company and shall have been satisfied with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved the Merger in accordance with the NGCL; and (h) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target SharesMaryland.