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

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further subject to satisfaction or waiver by Parent or Sub at or prior to the Effective Time of the following conditions: (a) The representations and warranties of the Company in this Agreement that are qualified by materiality shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time (except as to those representations and warranties made as of a specified date, which shall be so true and correct as of such specified date); (b) The representations and warranties of the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Time (except as to those representations and warranties made as of a specified date, which shall be so true and correct in all material respects as of such specified date); (c) the Company shall have performed in all material respects all covenants, agreements and obligations required to be performed by it under this Agreement; (d) there shall not have occurred and be continuing a Company Material Adverse Effect; and (e) the Company shall have delivered to Parent and Sub a certificate to the effect that each of the conditions specified in Section 7.2(a), (b), (c) and (d) above is satisfied in all respects; and (f) the Company shall have furnished Parent and Sub with the following: (i) a certificate of its Secretary or Assistant Secretary as to (i) the Company Bylaws, (ii) all resolutions of the Board of Directors of the Company and the Company Stockholders relating to this Agreement and (iii) incumbency of any officers signing this Agreement and any other documents in connection herewith on its behalf; (ii) a copy of the Company Articles of Incorporation, certified by the Secretary of State of the State of Nevada and dated within a recent date prior to the Effective Date and a copy of each of the Subsidiaries’ respective articles of incorporation or similar document, as the case may be, certified by the Secretary of State or other appropriate official of the jurisdiction of organization or incorporation of such entity, each dated within a recent date prior to the Effective Date; (iii) a certificate of legal existence and good standing for each of the Company and its Subsidiaries from the Secretary of State or other appropriate official of the jurisdiction of organization or incorporation of such entity, each dated within a recent date prior to the Effective Date; and (iv) such other certificates, documents and instruments as may be necessary to effect the intent of this Agreement or consummate the transactions contemplated hereby.

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further shall be subject to satisfaction or waiver by Parent or Sub the fulfillment at or prior to the Effective Time Date of the additional following conditions, unless waived by Parent: (a) The representations and warranties of the Company in this Agreement that are qualified by materiality shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time (except as to those representations and warranties made as of a specified date, which shall be so true and correct as of such specified date); (b) The representations and warranties of the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Time (except as to those representations and warranties made as of a specified date, which shall be so true and correct in all material respects as of such specified date); (c) the Company shall have performed in all material respects all covenants, its agreements and obligations contained in this Merger Agreement required to be performed by it under this Agreement; (d) there shall not have occurred and be continuing a Company Material Adverse Effect; and (e) the Company shall have delivered to Parent and Sub a certificate to the effect that each of the conditions specified in Section 7.2(a), (b), (c) and (d) above is satisfied in all respects; and (f) the Company shall have furnished Parent and Sub with the following: (i) a certificate of its Secretary on or Assistant Secretary as to (i) the Company Bylaws, (ii) all resolutions of the Board of Directors of the Company and the Company Stockholders relating to this Agreement and (iii) incumbency of any officers signing this Agreement and any other documents in connection herewith on its behalf; (ii) a copy of the Company Articles of Incorporation, certified by the Secretary of State of the State of Nevada and dated within a recent date prior to the Effective Date and a copy of each the representations and warranties of the Subsidiaries’ respective articles of incorporation Company contained in this Merger Agreement shall be true in all material respects (except for any such representations or similar documentwarranties which are qualified as to Company Material Adverse Effect, which shall be true and correct in all respects) when made and on and as the case may be, certified by the Secretary of State or other appropriate official of the jurisdiction of organization or incorporation Effective Date as if made on and as of such entitydate, each dated within except for representations and warranties which are by their express provisions made as of a recent specific date prior or dates which were or will be true in all material respects (except for any such rep resentations or warranties which are qualified as to the Effective Date; (iiiCompany Material Adverse Effect, which were or will be true and correct in all respects) at such date or dates, and Parent and Sub shall have received a certificate of legal existence and good standing for each the President or Chief Executive Officer or a Vice President of the Company and its Subsidiaries from the Secretary to that effect. (b) Parent shall have received a favorable opinion of State or other appropriate official Wachtell, Lipton, Xxxxx & Xxxx, based upon certain factual representations of the jurisdiction of organization or incorporation of Company, Parent and Sub reasonably requested by such entitycounsel, each dated within a recent date prior to the Effective Date; andeffect that the Merger will be treated for federal income tax purposes as a "reorganization" within the meaning of Section 368(a) of the Code. (ivc) such other certificatesThe Company shall have obtained all consents, documents appeals, releases or authorizations from, and instruments as may be shall have made all filings and registrations to or with, any person, including but not limited to any Governmental Entity, necessary to effect the intent of this Agreement be obtained or made in order to consummate the transactions contemplated hereby.by this Merger Agreement. ARTICLE IX

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further shall be subject to satisfaction or waiver by Parent or Sub the fulfillment, at or prior to the Effective Time Closing, of the following conditions: (a) The consummation of the Merger shall not be restrained, enjoined, prohibited or materially restricted or delayed by any order, judgment, decree, injunction or ruling of a court of competent jurisdiction or any Governmental Entity and there shall not have been any statute, rule or regulation enacted, promulgated or deemed applicable to the Merger by any Governmental Entity which prevents or materially restricts or delays the consummation of the Merger. No Action by any Governmental Entity shall have been commenced (and be pending), or, to the knowledge of the parties hereto, threatened, against Parent, Sub, HD or any Subsidiary or any of their respective Affiliates, partners, associates, officers, directors or stockholders seeking to prevent or delay the transactions contemplated hereby or challenging any of the terms or provisions of this Agreement or seeking material damages in connection therewith. (b) HD shall have performed in all material respects its agreements contained herein required to be performed at or prior to the Closing, and the representations and warranties of the Company in this Agreement HD contained herein that are qualified by as to materiality shall be true and correct and such representations that are not so qualified shall be true and correct in all material respects as of the date of this Agreement when made and as of the Effective Time (except as to those for representations and warranties made as of a specified date, which shall need only be so true and correct as of such specified date); (b) The representations and warranties of the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects as of the date of this Agreement at and as of the Effective Time (except Closing as to those representations if made at and warranties made as of a specified date, which shall be so true and correct in all material respects as of such specified date)time, and Parent shall have received a certificate of HD to such effect signed by a duly authorized officer of HD; (c) the Company HD shall have performed in all material respects all covenants, agreements and obligations required obtained or caused to be performed by it under this Agreementobtained all of the Consents, if any, listed in Section 7.2(c) of the HD Disclosure Schedule; (d) there shall not have occurred and be continuing a Company Material Adverse Effect; and (e) the Company Parent shall have delivered to Parent and Sub received a certificate to the effect that each of the conditions specified in Section 7.2(a), (b), (c) and (d) above is satisfied in all respects; and (f) the Company shall have furnished Parent and Sub with the following: (i) a corporate certificate of its good standing for HD and each Subsidiary as of a recent date, from the Secretary or Assistant Secretary as to (i) the Company Bylawsof State of each such entity’s jurisdiction of formation, (ii) all resolutions of the Board of Directors of the Company and the Company Stockholders relating to this Agreement and (iii) incumbency of any officers signing this Agreement and any other documents in connection herewith on its behalf; (ii) a copy of the Company Articles Certificate of IncorporationIncorporation of HD and each Subsidiary, each as certified by the Secretary of State of the State of Nevada and dated within a recent date prior to the Effective Date and a copy of each of the Subsidiaries’ respective articles of incorporation or similar document, as the case may be, certified by the Secretary of State or other appropriate official of the such entity’s jurisdiction of organization or incorporation of such entity, each dated within a recent date prior to the Effective Dateformation; (iiie) There shall have been no Material Adverse Effect of HD or any Subsidiary since the date of this Agreement; provided however, that for purposes of this Section 7.2(e), continuing losses incurred by HD in the ordinary course of business shall not be deemed to be a certificate Material Adverse Effect; (f) HD shall have successfully completed the Rights Offering, raising gross proceeds of legal existence at least $4,000,000; (g) The SEC Approval shall have been obtained; (h) Parent shall have received at Closing, a Stockholders Agreement, substantially in the form of Exhibit D hereto, duly executed by ST, Spencxx Xxxxx Xxxxstment Partners, LLC, Spencxx Xxxxx Xxxxllectual Capital Company LLC, Witmer, Stemm, Cisco Systems, Inc. and good standing for each Motorola, Inc.; (i) The HD Stockholder Approval shall have been obtained; (j) Rights to demand appraisal under Section 262 of the Company and its Subsidiaries from the Secretary of State DGCL shall have expired or other appropriate official shall otherwise be unavailable with respect to at least 95% of the jurisdiction HD Shares; (k) Parent shall have received at the Closing, the Lock-Up Escrow Agreement, substantially in the form of organization or incorporation of such entityExhibit A, each dated within a recent date prior to the Effective Dateduly executed by HD; (l) The Debt Restructuring shall have been completed; (m) The Parent Stockholder Consent shall have been obtained; and (ivn) such other certificatesParent shall have received an opinion of legal counsel of HD, documents and instruments as may be necessary to effect substantially in the intent form of this Agreement or consummate the transactions contemplated herebyExhibit G hereto.

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further subject to satisfaction or waiver by Parent or Sub at or prior to the Effective Time of the following conditions: (a) The representations and warranties of the Company in this Agreement that are qualified by materiality shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time (except as to those representations and warranties made as of a specified date, which shall be so true and correct as of such specified date); (b) The representations and warranties of the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Time (except as to those representations and warranties made as of a specified date, which shall be so true and correct in all material respects as of such specified date); (c) the Company shall have performed in all material respects all covenants, agreements and obligations required to be performed by it under this Agreement; (d) there shall not have occurred and be continuing a Company Material Adverse Effect; and (e) the Company shall have delivered to Parent and Sub a certificate to the effect that each of the conditions specified in Section SECTION 7.2(a), (b), (c) and (d) above is satisfied in all respects; and (f) the Company shall have furnished Parent and Sub with the following: (i) a certificate of its Secretary or Assistant Secretary as to (i) the Company Bylaws, (ii) all resolutions of the Board of Directors of the Company and the Company Stockholders relating to this Agreement and (iii) incumbency of any officers signing this Agreement and any other documents in connection herewith on its behalf; (ii) a copy of the Company Articles of Incorporation, certified by the Secretary of State of the State of Nevada and dated within a recent date prior to the Effective Date and a copy of each of the Subsidiaries’ ' respective articles of incorporation or similar document, as the case may be, certified by the Secretary of State or other appropriate official of the jurisdiction of organization or incorporation of such entity, each dated within a recent date prior to the Effective Date; (iii) a certificate of legal existence and good standing for each of the Company and its Subsidiaries from the Secretary of State or other appropriate official of the jurisdiction of organization or incorporation of such entity, each dated within a recent date prior to the Effective Date; and (iv) such other certificates, documents and instruments as may be necessary to effect the intent of this Agreement or consummate the transactions contemplated hereby.

Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further subject to satisfaction or waiver by Parent or Sub at or prior to the Effective Time of the following conditions: (ai) The representations and warranties of the Company in this Agreement that are qualified by (without giving effect to any materiality or Company Material Adverse Effect qualifications) shall be true and correct in all respects as of the date of this Agreement and as of the Effective Time (except as to those for representations and warranties made which are as of a specified specific date, in which event, they shall be so true and correct as of such specified date); , except for such inaccuracies in such representations or warranties as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; (b) The representations and warranties of the Company in this Agreement that are not qualified by materiality shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Time (except as to those representations and warranties made as of a specified date, which shall be so true and correct in all material respects as of such specified date); (cii) the Company shall have performed in all material respects all covenants, agreements and obligations required to be performed by it under this Agreement; Agreement at or prior to Closing; and (d) there shall not have occurred and be continuing a Company Material Adverse Effect; and (eiii) the Company shall have delivered to Parent and Sub a certificate to the effect that each of the conditions specified in Section 7.2(a), clauses (b), (ci) and (dii) above of this Section 7.2(a) is satisfied in all respects, duly executed by an authorized officer of the Company; (b) There shall not be overtly threatened, instituted or pending any action, proceeding, application or counterclaim by any Governmental Entity before any court or governmental regulatory or administrative agency, authority or tribunal which challenges or seeks to challenge, restrain or prohibit the consummation of the Merger; (c) There shall be no Company Stock Awards outstanding as of the Effective Time; and (fd) the The Company shall have furnished caused to be delivered to Parent and Sub with resignations of all the following: (i) a certificate of its Secretary or Assistant Secretary as to (i) the Company Bylaws, (ii) all resolutions of the Board of Directors directors of the Company and the Company Stockholders relating to this Agreement and (iii) incumbency of any officers signing this Agreement and any other documents in connection herewith on its behalf; (ii) a copy Subsidiaries effective as of the Company Articles of Incorporation, certified by the Secretary of State of the State of Nevada and dated within a recent date prior to the Effective Date and a copy of each of the Subsidiaries’ respective articles of incorporation or similar document, as the case may be, certified by the Secretary of State or other appropriate official of the jurisdiction of organization or incorporation of such entity, each dated within a recent date prior to the Effective Date; (iii) a certificate of legal existence and good standing for each of the Company and its Subsidiaries from the Secretary of State or other appropriate official of the jurisdiction of organization or incorporation of such entity, each dated within a recent date prior to the Effective Date; and (iv) such other certificates, documents and instruments as may be necessary to effect the intent of this Agreement or consummate the transactions contemplated herebyTime.