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 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 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 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) the representations and warranties set forth in Section 4.7(j) shall be true and correct as of the date of this Agreement and as of the Effective Time as though made on and as of the Effective Time, and (ii) the other 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 the Effective Time (except to the extent expressly made as of an earlier date, in which case as of such timeearlier date; and, except that in all cases, without giving effect to any limitation on any representation or warranty indicated by the representations and warranties set forth words “Material Adverse Effect,” “in Section 3.5 shall be updated as provided all material respects,” “in Section 5.15(aany material respect,” “material” or “materially”); (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, it under this Agreement at or prior to the Effective Time; (c) 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 8.2(a) and (b) have been satisfied; (d) Parent shall have entered into financing agreements pursuant to the Additional Financing Commitment under which Parent shall have received, or shall receive no later than the Effective Time, $12 million of financing (the “Additional Financing”) for the purpose of funding the transactions contemplated hereby; (e) the Waiver, as in effect on the date hereof or amended or modified as (x) permitted under Section 6.1(n)(ii) or (y) otherwise permitted in writing by Parent, shall be in full force and effect and not otherwise amended; and (f) the Company shall have delivered to Parent each of the following: (i) a certificate of the Secretary of the Company, in form reasonably satisfactory to Parent, setting forth resolutions of the board of directors of the Company authorizing the execution of this Agreement (including the Exhibits hereto) and the taking of any and all actions deemed necessary or advisable to consummate the Principal Shareholder on or transactions contemplated hereby, and appending a true and complete copy of the Certificate of Incorporation and Bylaws of the Company as the same are in effect as of the Closing; (ii) a good-standing certificate for the Company from the Maryland State Department of Assessments and Taxation dated no earlier than ten days prior to the Closing Date and good-standing certificates for each Company subsidiary from its state of organization, each dated no earlier than 10 days prior to the Closing Date; (ciii) The company shall have delivered to Parent and Merger Sub a certificate the signed legal opinion of Xxxxx & Xxxxxxx LLP covering the Secretary of the Company and the Principal Shareholder to the effect that the conditions matters set forth in Section 6.2(a) Exhibit C and (b) hereof have been satisfiedotherwise reasonably acceptable to Parent’s counsel; (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)Final Purchase Price Statement; (ev) The GAAP Financial Statements and records a certificate from an officer of the Company shall be of such quality thatCompany, in form reasonably satisfactory to Parent, specifying the judgment of Parent in its sole and absolute discretion, an audit amount of the Financial Statements can be completed within fortyBorrowed-five Money Debt and including a reasonably detailed itemization of Company Transactional Expenses (45) days after which shall include supporting documentation such as invoices and such other documentation as Parent requires to establish to its satisfaction the Closing in accordance with applicable SEC rules and regulations; (f) Parent and Merger Sub shall have completed a due diligence review amount of the business, operations, financial condition and prospects all portions 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 NGCLTransactional Expenses); and (hvi) Immediately prior to Closing, the aggregate number a fully executed copy of Dissenting Target Shares shall not exceed five percent (5%) each of the aggregate number of outstanding Target Sharesletters referred to in Section 3.1(e).

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 Merger Effective Time of the following conditions: (a) The representations and warranties of the Company set out contained in this Agreement shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Material Adverse Effect”, “in all material respects at respects”, “in any material respect”, “material” or “materially”) as of the Merger Effective Time, as though made on and as of the time Merger Effective Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the Closing as though failure of any such representations and warranties were made at to be so true and as of such timecorrect 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 Material Adverse Effect; (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 DateMerger Effective Time; (c) The company Parent shall have delivered to Parent and Merger Sub received a certificate of the Secretary executed on behalf of the Company and by the Principal Shareholder to chief executive officer or chief financial officer of the effect Company, certifying that the conditions set forth in Section 6.2(a9.02(a) and (b) hereof have been satisfied; (d) The Company Parent shall have received evidence, in form and substance reasonably satisfactory to it, that all notices to third parties contemplated by Section 5.05(a) of the Company Disclosure Schedule to have been delivered on or prior to Parent and the Merger Sub any certificates evidencing the Target Shares Effective Time, and any agreement relating other notice to a third party the Target Shares failure of which to be delivered would, individually or in accordance with 2.2(a)(i) & (ii)the aggregate, reasonably be expected to have a Material Adverse Effect, shall have been delivered, and any consent or waiver of a third party the failure of which to be received would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, shall have been received; (e) The GAAP Financial Statements the approvals of and records of filings with Governmental Authorities described in Section 5.05(b) (or not described in Section 5.05(b) but required to be so described) have been obtained or filed, except where the Company shall be of such quality thatfailure to have been obtained or filed would not, individually or in the judgment of Parent in its sole and absolute discretionaggregate, an audit of the Financial Statements can reasonably be completed within forty-five (45) days after the Closing in accordance with applicable SEC rules and regulationsexpected to have a Material Adverse Effect; (f) Parent and Merger Sub shall have completed received satisfactory written evidence that with respect to that certain U.S. Know-How License and Trademark Agreement by and between Xxxxxxx Pharmaceutica NV and Pharmacare Ltd dated July 24, 2000, subsequently assigned by Pharmacare Ltd to Shimoda Biotech (Pty) Ltd and as amended to date (the “Know-How Agreement”), the time period under Article 13.1(a) for marketing a due diligence review Product in the Territory (as such terms are defined in the Know-How Agreement) has been extended for at least the period set forth in that certain letter agreement, dated August 23, 2007, by and between Xxxxxxx Pharmaceutica NV and Shimoda Biotech (Pty) Ltd., and that the Know-How Agreement or any other agreement or arrangement related thereto has not been otherwise amended or entered into, without the written consent of Parent, which adversely affects the rights or obligations 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 discretionCompany; (g) The Target Shareholders Parent shall have approved received written resignations from all of the directors of the Company and its Subsidiaries effective as of the Merger in accordance with the NGCLEffective Time; and (h) Immediately prior to ClosingSince the date of this Agreement, 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 or occurrence and no circumstance shall exist which, alone or together with any one or more other events, occurrences or circumstances has had, is having or would reasonably be expected to result in a Material Adverse Effect.

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 effect the Merger shall be are subject to the fulfillment satisfaction (or written waiver by Parent or on behalf of Parent and Merger Sub, at if permissible under applicable law) on or prior to the Closing, of each Closing Date of the following conditions: (a) The the representations and warranties of the Company set out contained in this Agreement (as modified by the Final Schedules) shall be true and correct accurate in all material respects at when made and as of the time Closing, with the same force and effect as if made as of the Closing (except to the extent any such representation or warranty speaks as though of the date of this Agreement or any other specific date, in which case such representation or warranty shall have been accurate in all respects as of such date), except that any inaccuracies in such representations and warranties were made at and will be disregarded for purposes of this Section 6.1(a) if such inaccuracies (considered collectively) do not have a Company Material Adverse Effect 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)Closing; (b) The the Company and the Principal Shareholder shall have performed and complied in all material respects with all covenants, conditions, obligations agreements and agreements 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, including delivery of the Final Schedules at or prior to Closing; (c) The company the Company shall have obtained and delivered to Parent and Merger Sub a certificate the Written Consent 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 satisfiedRequisite Shareholders; (d) The Parent shall have received, from each holder of any Indebtedness of the Acquired Companies for borrowed money, and any other Person who has extended a credit facility to any of the Acquired Companies, a duly executed payoff letter (each, a "Payoff Letter") setting forth the total amount of such outstanding Indebtedness due such Person, including accrued interest and any prepayment fees or penalties and any other amount due as a result of the termination of any such credit facility, as of the Closing Date (or confirming that no such Indebtedness is outstanding), and confirming that any such credit facility will terminate as of the Closing Date and providing that all liens related thereto shall be released; (e) the Shareholder Representative and the Escrow Agent shall have executed the Escrow Agreement; (f) there shall not have occurred a Company Material Adverse Effect, and no event shall have occurred or circumstance exist that, in combination with any other events or circumstances, could reasonably be expected to have a Company Material Adverse Effect; (g) there shall not be pending or threatened any action by a governmental authority seeking to restrain, prohibit or enjoin the consummation of the Merger; (h) no injunction or other order preventing the Merger shall have been issued since the date of this Agreement by any United States federal or state court of competent jurisdiction and shall remain in effect; and no United States federal or state law that makes the Merger illegal shall have been enacted since the date of this Agreement and shall remain in effect; (i) the California Permit shall have been issued by the California Commissioner and no stop order suspending the effectiveness of the California Permit or any part thereof shall have been issued; (j) the Company shall have delivered to Parent the approvals, consents or waivers of the Persons identified on Schedule 3.26 of the Disclosure Schedule, in form and Merger Sub any certificates evidencing the Target Shares and any agreement relating substance reasonably satisfactory to the Target Shares in accordance with 2.2(a)(i) & (ii)Parent; (ek) The GAAP Financial Statements each Non-Solicit Agreement and records of Non-Compete Agreement executed prior to the Company Closing Date shall be effective and shall not have been revoked, rescinded or amended without the written consent 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 regulationsParent; (fl) Parent and Merger Sub no Key Employee shall have completed a due diligence review terminated his or her employment with the Acquired Companies, revoked his or her acceptance of employment with Parent (if such employment had been offered and accepted), or to the Company's Knowledge indicated his or her intention not to continue employment with the Acquired Companies prior to the Closing or with Parent or the Acquired Companies, as applicable, following the Closing; (m) not more than ten percent (10%) of the business, operations, financial condition and prospects employees (excluding Key Employee) of the Company Acquired Companies as of the date of this Agreement shall have terminated their employment with the Acquired Companies, revoked their acceptance of employment with Parent (if such employment had been offered and accepted), or to the Company's Knowledge indicated their intention not to continue employment with the Acquired Companies prior to the Closing or with Parent or the Acquired Companies, as applicable, following the Closing; (n) the Requisite Bank Consent shall have been satisfied with the results of their due diligence review in their sole obtained and absolute discretionnot have been revoked, rescinded or amended; (go) The Target Shareholders the number of Dissenting Shares shall not represent more than 7.5% of the number of outstanding shares of Company Common Stock; (p) the Pre-Closing Stock Dividend shall have approved been declared and paid; (q) the Merger in accordance with amount of Closing Cash shall not exceed the NGCLsum of (i) $50,000 plus (ii) the Tax Reserve; and (hr) Immediately prior the Estimated Cash Consideration Shortfall shall be equal to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) of the aggregate number of outstanding Target Shareszero.

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 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 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 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 each of Parent and Merger Sub to consummate the Merger shall be is subject to the fulfillment satisfaction (or written waiver by Parent or Merger Sub, at or prior to the Closing, of each Parent) of the following additional conditions: (a) The representations and warranties of the Company set out contained in this Agreement shall be true and correct accurate in all material respects at on and as of the time Closing Date as if made on and as of the Closing as though Date, except to the extent such representations and warranties were are specifically made at as of a particular date (in which case such representations and warranties shall be 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(adate);. (b) The Company and the Principal Shareholder shall have performed and performed, complied with or satisfied in all material respects with all covenantsagreements, conditions, obligations covenants and agreements conditions required by this Agreement to be performed or performed, complied with or satisfied by the Company or the Principal Shareholder on under this Agreement as of or prior to the Closing Date;Closing. (c) The company No order of any Governmental Entity shall be in effect which restrains or prohibits the Transactions contemplated hereby, and no suit, action, investigation, inquiry or other proceeding by any Governmental Entity or legal or administrative proceeding shall have delivered been instituted or threatened by any Governmental Entity which questions the validity or legality of or seeks to otherwise restrain the Transactions contemplated hereby, or seeks to impose any liability on Parent and Merger Sub as a certificate result 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;Transactions contemplated hereby. (d) All approvals, or the absence of disapprovals within applicable time periods, of public authorities, federal, state or local (or exemptions from the requirements therefor), and all approvals of any Persons, the granting or absence of which is necessary for the consummation of the Transactions contemplated by this Agreement, shall have been obtained (or in the case of such disapprovals, shall be absent). (e) 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;Certificate. (f) Parent and Merger Sub Neumann shall have completed a due diligence review of executed and delivered to Parent an Employment Agrxxxxxx in 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;form attached as Exhibit A-1 hereto. (g) The Target Shareholders Levine shall have approved executed and delivered to Parent an Employment Agrexxxxx in the Merger in accordance with the NGCL; andform attached as Exhibit A-2 hereto. (h) Immediately prior to Parent shall have received copies of the resignations, effective as of the Closing, of each director (other than directors designated by Parent) and officer of the aggregate number of Dissenting Target Shares Company. (i) Since the date hereof, there shall not exceed have occurred any occurrence having a Company Material Adverse Effect. (j) The Shareholder Representative, shall have delivered to Parent, or to counsel to the Company on an escrowed basis for release upon Closing, each Shareholder's Certificates and an accompanying Stock Power by such Shareholder in the form attached as Exhibit B. (k) Each Shareholder shall execute an original signature page of the Registration Rights Agreement in the form attached as Exhibit C and shall deliver, or cause to be delivered by the Shareholder Representative, a fully executed original thereof to Parent, or to Parent's counsel to be held in escrow pending the Closing. (l) The Shareholder Representative and the Escrow Agent (as defined in the Escrow Agreement) shall execute the Escrow Agreement in the form attached as Exhibit D and shall deliver a fully executed original thereof to Parent or to Parent counsel, to be held in escrow pending the Closing. (m) Each Shareholder shall have executed and delivered, or caused to be delivered by the Shareholder Representative, to Parent an Investor Representation Statement and there shall be no more than thirty-five percent (5%35) Shareholders who are not "accredited investors" (as such term is defined in Rule 501(a) of the aggregate number Regulation D). (n) There shall be a "purchaser representative" (as defined in Rule 501(h) of outstanding Target SharesRegulation D), reasonably satisfactory to Parent, representing each holder of Shareholder Common Shares who is a Person and not an "accredited investor" (as defined in Rule 501(a) of Regulation D), and such "purchaser representative" shall have executed and delivered documentation reasonably satisfactory to Parent.

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 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 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.

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 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 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 the Merger shall be transactions contemplated hereby 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 (i) Fundamental Representations must be true and correct in all respects as of the date hereof and as of the Closing Date as though made on and 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), and (ii) the remaining representations and warranties of the Company set out in this Agreement shall must be true and correct in all material respects at (without giving effect to any materiality or Material Adverse Effect or similar materiality qualifiers contained therein) as of the date hereof and as of the time Closing Date as though made on and as of the date hereof 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 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);correct would not have a Material Adverse Effect. (b) The Company and the Principal Shareholder shall Representative must have performed performed, satisfied and complied with in all material respects with all covenantsobligations, conditions, obligations covenants and agreements required by this Agreement to be performed or performed, satisfied and complied with by the Company or the Principal Shareholder on it under this Agreement at or prior to the Closing Date;Closing. (c) The company shall Company and Representative must have delivered or caused to Parent be delivered to Buyer the items required by Section 2.2. (d) There has been no Material Adverse Effect. (e) Xxxx stands ready, willing and Merger Sub a certificate able to proceed with the closing of the Secretary Xxxx Transaction immediately after the Closing; provided, that this condition shall be deemed to have been satisfied or waived unless, within one Business Day of Parent receiving written notice from the Company and the Principal Shareholder to the effect Representative that (i) each of the conditions set forth in Section 6.2(aSections 6.1, 6.2 and 6.3 have been satisfied or waived (other than those conditions intended to be fulfilled at the Closing) and (bii) 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 that the Company shall be of such quality thatand Representative stand ready, in the judgment of Parent in its sole willing and absolute discretion, an audit of the Financial Statements can be completed within forty-five (45) days after the able to proceed to Closing in accordance with applicable SEC rules and regulations; Section 2.1, Parent certifies to the Representative in writing, that (fx) Parent and Merger Sub shall have completed a due diligence review of all conditions to Xxxx’x obligation to close the business, operations, financial condition and prospects of the Company and shall Xxxx Transaction have been satisfied or waived (other than those conditions intended to be fulfilled at the closing of the Xxxx Transaction), and (y) Xxxx has either confirmed to Parent in writing that Xxxx does not stand ready, willing and able to proceed 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 Xxxx Transaction or has not exceed five percent (5%) of the aggregate number of outstanding Target Shares.confirmed to

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 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 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 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 4.19 (Brokers and Finders), Section 4.20 (Vote Required), Section 4.21 (Company Board Recommendation), and Section 4.23 (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 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) and (bc) 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);; and (e) The GAAP Financial Statements and records Except as disclosed on Schedule 4.10, there shall not be pending or, to the Knowledge of the Company, threatened any Legal Proceeding that could reasonably be expected to have a Company shall be of such quality thatMaterial Adverse Effect, in not otherwise covered by insurance, following 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 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 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 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 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 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) the representations and warranties of the Company set out contained 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”, “in any material respect”, “material”, or “materially”) at such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), in each case except where all failures of the representations and warranties to be so true and correct would not, or would not reasonably be expected to, in the aggregate, have a Company Material Adverse Effect; (c) the Company shall have performed 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 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 shall have delivered to Parent and Merger Sub a certificate of the Secretary outstanding indebtedness of the Company and as of the Principal Shareholder Closing Date shall not exceed Four Million Three Hundred Forty-Four Thousand Four Hundred Forty-Five Dollars ($4,344,445.00); provided, that, if the Closing does not occur on or before July 15, 2011, the Company shall be permitted to incur $500,000 of additional indebtedness with a per annum interest rate of not more than 12% for every 30 day period after such date; (e) the effect Parent shall have received a certificate 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 Section 6.2(aSections 7.2(b)-(a) and through (bd) hereof have been satisfied; (df) The Company each of Axxxx Xxxxxxx and Gxx Xxxxx shall have delivered entered into a noncompetition and nonsolicitation agreement with the Parent in form and substance reasonably acceptable to Parent and Merger Sub any certificates evidencing the Target Shares Axxxx Xxxxxxx 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 thatGxx Xxxxx, 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 discretionas applicable; (g) The Target Shareholders there shall not have occurred and be pending any general suspension of, or limitation on trading in securities on Nasdaq; (h) U.M. AccelMed, Limited Partnership shall have approved agreed in a writing acceptable to the Merger Parent to cancel its warrants to purchase an aggregate of 4,404,772 shares of common stock of the Company; (i) The Tail Wind Fund, Ltd. and Solomon Strategic Holders, Inc. shall have agreed in a writing acceptable to Parent to cancel warrants to purchase 1,239,396 and 210,961 shares of common stock of the Company, respectively, in exchange of an aggregate amount equal to $249,000 in shares of Parent Common Stock as determined in accordance Common Exchange Ratio set forth herein; provided that if the Parent determines in its reasonable discretion that such shares may not be exempt from registration under the Federal securities laws as a result of the Fairness Hearing, than such $249,000 will be paid in cash; (j) The Tail Wind Fund, Ltd. and Solomon Strategic Holders, Inc. shall have agreed in a writing acceptable to Parent, with respect to certain convertible notes, that (i) a “Change in Control Transaction” (as defined in such convertible notes) will only occur upon the closing such transaction and (ii) the 30% premium ($206,250) to be paid upon such Change in Control Transaction will be calculated on the date of signing this Agreement but will be paid to The Tail Wind Fund, Ltd. and Solomon Strategic Holders, Inc. on the date of the closing of the Change in Control Transaction or the date the Change in Control Transaction is terminated and 50% of such 30% premium will be paid in shares of Parent Common Stock as determined in accordance Common Exchange Ratio, with the NGCLbalance payable in cash; provided that if the Parent determines in its reasonable discretion that such shares may not be exempt from registration under the Federal securities laws as a result of the Fairness Hearing, than such 30% premium ($206,250) will be paid in cash; and (hk) Immediately prior Mizrahi Tefahot Bank Ltd. shall have agreed in a writing acceptable to Closing, the aggregate number Parent to receive $225,000 in cash in lieu of Dissenting Target Shares shall not exceed five percent (5%) 350,000 shares of common stock of the aggregate number Company pursuant to a certain warrant agreement with the Company in connection with the closing of outstanding Target Sharesthe transactions contemplated hereby.

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, disregarding all materiality and Company Material Adverse Effect qualifiers (except as set forth in Section 2.07(ii)), 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), except that for failures to be true and correct which 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 the Company or the Principal Shareholder on by, it under this Agreement at or prior to the Closing DateClosing; (ciii) The company 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 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 6.02(i), (ii) and (biii) hereof have been satisfied; (dv) The Parent or Merger Sub, as applicable, shall have received the proceeds of the financing contemplated by the Commitment Letters, or alternate financing, on terms and conditions reasonably acceptable to Parent and Merger Sub; (vi) the Company shall have delivered obtained, and provided to Parent and Merger Sub any certificates evidencing copies of evidence with respect to, the Target Shares Company Required Consents, the terms of which shall be reasonably satisfactory to Parent and any agreement relating Merger Sub; (vii) The 2005 Audited Financials shall reflect 2005 EBITDA of no less than $23,700,000 (provided, that failure of the Company to satisfy this condition shall not, by itself, constitute the Target Shares in accordance with 2.2(a)(i) & (iibasis for payment of the Company Termination Fee or the Parent Expenses); (eviii) The GAAP Financial Statements and records of the Company no suit, action, proceeding, claim, inquiry or investigation by any Governmental Authority or any third party shall be of such quality thatpending seeking to prohibit or restrain, or seeking damages 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 connection with the results of their due diligence review in their sole and absolute discretion; (g) The Target Shareholders shall have approved Merger or the Merger in accordance with the NGCLtransactions contemplated by this Agreement; and (hix) Immediately prior to Closing, the aggregate number of Dissenting Target Shares shall not exceed five percent (5%) be less than 10% of the aggregate total number of shares of Company Common Stock outstanding Target Sharesat the Effective Time.

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 3.4 shall be updated as provided in Section 5.15(a5.11(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 Shares and any agreement agreements 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, assets, intellectual property, 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 Company Shareholder Approval shall have approved the Merger in accordance with the NGCLbeen obtained; 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 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 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 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.