Common use of Conditions to Obligations of the Company Clause in Contracts

Conditions to Obligations of the Company. The obligation of the Company to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) the representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (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 in all material respects as of such specified date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger Mergers and the transactions contemplated hereby shall be further subject to the satisfaction or waiver at or prior to the Effective Time fulfillment of the following conditionsconditions unless waived by the Company: (a) the The representations and warranties of Parent and Parent, Merger Sub and LLC set forth in Article IV (which for purposes of this Agreement paragraph (a) shall be read as though none of them contained any Material Adverse Effect or materiality qualifier) shall be true and correct in all material respects, in each case as of date of this Agreement respects on and as of the Effective Time Closing Date with the same effect as though made on and as of the Closing Date (except for such date (unless any such representation or warranty is representations and warranties made only as of a specific specified date, the accuracy of which will be determined as of the specified date), except where the failure of the representations and warranties in which event such representation and warranty shall the aggregate to be true and correct in all material respects as of such specified date);would not have a Material Adverse Effect on Parent. (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, its obligations and agreements and shall have complied in all material respects with the agreements and covenants, required its covenants to be performed by or and complied with by it under this Agreement hereunder at or prior to the Effective Time;. (c) Parent shall have furnished the Company with a certificate dated the Closing Date signed on behalf of it by its President or any Vice President to the effect that the conditions set forth in Sections 6.2(a) and (b) have been satisfied. (d) Since the date of this Agreement, there shall not have been and be continuing a Material Adverse Effect on Parent. (e) The Company shall have received the an opinion of from Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx LLPXxxxxx, counsel to the Company, Professional Corporation dated the Closing Date, based upon certain factual representations of the Company and Parent reasonably requested by such counsel, to the effect that provided the Merger Tax Free Valuation Test is satisfied, the Mergers will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering , provided, however, that if Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx does not render such opinion, counsel this condition shall nonetheless be deemed to be satisfied with respect to the Company shall be entitled if Dechert LLP, counsel to rely upon customary representations and assumptions provided by Parent renders such opinion to the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger transactions contemplated by this Agreement at the Closing shall be further subject to the satisfaction fulfillment or waiver the Company’s waiver, at or prior to the Effective Time Closing Date, of each of the following conditions: (a) the The representations and warranties of Parent and Merger Sub set forth Buyer contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Article IV shall be true and correct in all material respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all material respects as of that specified date);, except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on Buyer’s or Buyer’s ability to consummate the transactions contemplated hereby. (b) each of Parent and Merger Sub Buyer shall have duly performed in all material respects the obligations, and complied in all material respects with the agreements all agreements, covenants and covenants, conditions required by this Agreement to be performed by or complied with by it under this Agreement at or prior to or on the Effective Time;Closing Date. (c) the The Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Companya certificate, dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as Date and signed by a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive duly authorized officer of Buyer, that each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a(a) and Section 7.3(b(b) have been satisfied; and. (d) The Company shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the consummation of the Transaction and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby. (e) Parent shall have performed all of its obligations to be performed by it at On or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination execution of this Agreement, including the payment of all amounts due by Parent Buyer shall have delivered to the relevant parties thereto Company cash in an amount equal to the Purchase Price for all Shares to be purchased pursuant to this Agreement) by wire transfer in immediately available funds, to an account or accounts that has been designated by the terms thereofCompany in a written notice to Buyer.

Conditions to Obligations of the Company. The obligation of the Company to effect purchase the Merger shall be further Shares hereunder is subject to the satisfaction or waiver at on or prior to before the Effective Time closing of the Purchase of each of the following conditions:conditions (any one or more of which may be waived in whole or in part by the Company): (a) No Governmental Authority having jurisdiction over Seller, or any of its respective subsidiaries, shall have enacted, issued, promulgated, enforced or entered any law, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the transactions contemplated herein illegal or otherwise prohibiting consummation of the transactions contemplated herein; (b) The Closing shall have occurred or be concurrently occurring in accordance with the terms of the Underwriting Agreement (including the payment to the Company of the proceeds from such sale as contemplated thereby); (c) The representations and warranties of Parent and Merger Sub set forth the Seller contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement respects on and as of the Effective Time date hereof and on and as of the Closing Date as though made on and as of such date (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 in all material respects as of such specified date); (bd) each of Parent and Merger Sub The Seller shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, of its obligations hereunder required to be performed by it on or complied with by it under this Agreement at or prior to before the Effective TimeClosing Date; (ce) the The Company shall have received a certificate signed by a duly authorized officer of the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, Seller to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of set forth in Section 368(a4.1(c) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant(d) above; (df) the The Company shall have received certificates a certificate of an executive officer non-foreign status from Seller in the format required by Treas. Reg. 1.1445-5(b)(3)(ii)(D)(2) issued pursuant to Section 1445 of each of Parent and Merger Subthe United States Internal Revenue Code, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedas amended; and (eg) Parent The Seller shall have performed all of its obligations to be performed by it at or prior delivered a properly completed W-9 to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofCompany.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger Purchase shall be further subject to the satisfaction or waiver at or prior to the Effective Time Closing of each of the following conditions: (a) The Company Stockholder Approval shall have been obtained; (b) Each of the representations and warranties of Parent and Merger Sub set forth the Purchasers contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement Closing (except to the extent such representations and as of the Effective Time as though warranties are made on and as of such date (unless any such representation or warranty is made only as of a specific particular date, in which event case such representation representations and warranty warranties shall be have been true and correct in all material respects as of such specified date); (bc) each Each of Parent and Merger Sub shall have performed the Purchasers in all material respects the obligationsshall have performed, satisfied and complied with each of its covenants and agreements set forth in all material respects with the agreements and covenants, required this Agreement to be performed by or performed, satisfied and complied with by it under this Agreement at or prior to or at the Effective TimeClosing; (cd) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice; (e) Each of the Purchasers shall have delivered to the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, a certificate dated the Closing Date, Date and signed by such Purchaser to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) execution, delivery and performance of the Code. In rendering Agreement has been duly authorized by all requisite corporate action on the part of such opinionPurchaser and the Agreement constitutes a legal, counsel valid and binding obligation of such Purchaser, enforceable against such Purchaser, in accordance with its terms, except to the Company shall extent that enforceability may be entitled to rely upon customary representations and assumptions provided limited by the Companybankruptcy, Merger Sub and Parent that counsel to the Company reasonably deems relevantinsolvency or other similar laws affecting creditors’ rights generally; (df) The Purchasers and the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that executed a registration rights agreement substantially in the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedform attached hereto as Exhibit A; and (eg) Parent The Purchasers, the Company and the other parties thereto shall have performed all executed a termination of its obligations to be performed by it at or the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofdate hereof.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger contemplated by this Agreement shall be further subject to the satisfaction or waiver at or prior to the Effective Time by Xxxx of the following conditionsconditions precedent on and as of the Commencement Date: (a) Xxxx shall have duly executed and delivered the Inventory Sales Agreements, as set forth on Schedules Y and Z, and Xxxx shall have paid the respective portions of the Commencement Date Purchase Value to the Company and XXXX that are due on the Commencement Date; (b) Xxxx shall have duly executed and delivered the Storage Facilities Agreement, as set forth on Schedule AA; (c) Xxxx shall have duly executed and delivered the Marketing and Sales Agreement, as set forth on Schedule X; (d) The Parties shall have agreed to the pricing method to be used and the form and substance of the Step-Out Inventory Sales Agreement (which form is attached hereto as Schedule R); (e) Xxxx shall have duly executed the Fee Letter; (f) All representations and warranties of Parent and Merger Sub set forth Xxxx contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Transaction Documents shall be true and correct in all material respects on and as of such specified date)the Commencement Date; (bg) each of Parent and Merger Sub Xxxx shall have performed in all material respects the obligations, and complied in all material respects with the all covenants and agreements and covenants, hereunder that it is required to be performed by comply with on or complied with by it under this Agreement at or prior to before the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Commencement Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (eh) Parent Xxxx shall have performed all delivered to the Company such other certificates, documents and instruments as may be reasonably necessary to consummate the transactions contemplated herein; (i) The Stock Purchase Agreement shall have been duly executed and the “Closing” contemplated thereunder shall have occurred, and the transactions (other than the transactions contemplated hereby) necessary for the financing of the consummation by the Company and its Affiliates of the transactions contemplated by the Stock Purchase Agreement shall have been consummated; and (j) Xxxx shall have delivered satisfactory evidence of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement federal form 637 license and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofany applicable reseller sales tax exemption certificate(s).

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver the Company’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) Other than the representations and warranties of Parent and Merger Sub set forth contained in Section 4.01 and Section 4.04, the representations and warranties of Parent and Merger Sub contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects, respects (in each the case as of date of this Agreement any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the Effective Time date hereof and on and as of the Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date in which event such representation all respects). The representations and warranty warranties of Parent and Merger Sub contained in Section 4.01 and Section 4.04 shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such specified date);. (b) each of Parent and Merger Sub shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by or complied with by it under this Agreement them prior to or on the Closing Date. (c) All approvals, consents and waivers that are listed on Section 4.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to the Company at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;Closing. (d) the Company Parent shall have received certificates of an executive officer of delivered each of Parent and Merger Sub, certifying that the conditions closing deliverables set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof2.03(b).

Conditions to Obligations of the Company. The obligation of Company’s obligations to consummate the Company to effect the Merger shall be further transactions contemplated hereby are subject to the satisfaction fulfillment or waiver at or satisfaction, prior to or on the Effective Time Closing Date, of the following conditions; provided that these conditions are for the Company’s sole benefit and may be waived only by the Company at any time in its sole discretion by providing the Shareholder with prior written notice thereof: (ai) the Merger and the Private Placement shall be consummated simultaneously with the Closing; (ii) the representations and warranties of Parent and Merger Sub set forth in this Agreement each of the Shareholders herein shall be true and correct in all material respects, in each case as of the date of this Agreement when made and as of the Effective Time Closing Date as though made on at that time (except for representations and as of such date (unless any such representation or warranty is made only warranties that speak as of a specific date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date); (b) , and each of Parent and Merger Sub the Shareholders shall have performed in all material respects the obligationsperformed, satisfied and complied in all material respects with the covenants, agreements and covenants, conditions required by this Agreement to be performed by performed, satisfied or complied with by it under this Agreement such Shareholder at or prior to the Effective Time; Closing Date (c) and the Company shall have received a certificate, executed by the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the CompanyShareholders, dated as of the Closing Date, certifying to the effect that the Merger will foregoing and as to such other matters as may be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided reasonably requested by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant); (diii) there shall not have been entered a preliminary or permanent injunction, temporary restraining order or other judicial or administrative order or decree in any jurisdiction, the effect of which would (A) prevent consummation of the transactions contemplated by this Agreement, or (B) cause the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction or order shall be in effect), nor shall any law or order which would have any of the foregoing effects have been enacted or promulgated by any governmental authority to which the Company or either of the Shareholders is subject; (iv) the Company Shareholders shall have received delivered a certificate or certificates of representing the Shares and an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and irrevocable stock power pursuant to Section 7.3(b) have been satisfied1(b); and (ev) Parent each of the Shareholders shall have performed all of its obligations to be performed by it at or prior delivered to the Effective Time under Company two copies of a properly completed and executed IRS Form W-9 and such other documents (if any) as may be required in order to establish that the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent Company is not required to withhold taxes from any payments to the relevant parties thereto pursuant to Shareholders hereunder or under any of the terms thereofother Transaction Documents.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger shall be further Closing is subject to the satisfaction satisfaction, or the waiver at or prior to the Effective Time Company’s discretion, of all of the following further conditions: (a) The Purchaser Parties shall have duly performed in all material respects all of their obligations hereunder required to be performed by them at or prior to the Closing Date. (b) All of the representations and warranties of Parent and Merger Sub set forth the Purchaser Parties contained in this Agreement shall and in any certificate delivered by the Purchaser Parties pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall: (i) be true true, correct and correct in all material respects, in each case complete at and as of the date of this Agreement or, if otherwise specified, when made or when deemed to have been made, and (ii) be true, correct and complete as of the Closing Date, except in the case of (i) and (ii) for any inaccuracies in such representations and warranties which would not in the aggregate reasonably be expected to have a Material Adverse Effect on the Purchaser. (c) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence has had a Material Adverse Effect on the Purchaser. (d) The Company shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Purchaser to the effect set forth in clauses (a) through (c) of this Section 9.3. (e) The Stockholder Designees shall have been appointed to the board of directors of the Purchaser, effective as of the Closing. Other than the Stockholder Designees, all members of the Purchaser’s board of directors shall have executed written resignations effective as of the Effective Time as though made on and as of such date (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 in all material respects as of such specified date);Time. (bf) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (c) the The Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel all documents it may reasonably request relating to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) existence of the Code. In rendering such opinionPurchaser Parties and the authority of the Purchaser Parties to enter into and perform under this Agreement, counsel all in form and substance reasonably satisfactory to the Company shall be entitled to rely upon customary representations and assumptions provided its legal counsel, including (i) copies of each Purchaser Party’s certificate of incorporation certified as of a recent date by the CompanySecretary of State of the State of Delaware, (ii) copies of resolutions duly adopted by the board of directors of the Purchaser Parties and by vote or consent of the stockholders of the Purchaser Parties authorizing this Agreement, the Additional Agreements and the Merger Sub and Parent that counsel to other transactions contemplated hereby and thereby, (iii) a certificate of the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer Secretary of each of Parent the Purchaser Parties certifying as to signatures of the officer(s) executing this Agreement and Merger Subany certificate or document to be delivered pursuant hereto, certifying that together with evidence of the conditions set forth incumbency of such Secretary, and (iv) a recent good standing certificate regarding the Purchaser Parties from each jurisdiction in Sections 7.3(a) and Section 7.3(b) have been satisfied; andwhich each Purchaser Party is organized or is qualified to do business. (eg) Parent The Purchaser shall not have performed all of its obligations any Indebtedness other than up to be performed by it at or prior to $1,000,000 for working capital purposes in the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofordinary course.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following conditionsconditions precedent, each of which may be waived in writing in the sole discretion of the Company: (a) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in this Agreement shall be true and correct in all material respects, in each case when made as of the date of this Agreement and as of the Effective Time Closing as though made on and as of the Closing, except (i) to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date), (ii) for changes expressly contemplated or permitted by this Agreement and (iii) in any event, as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Buyer and its Subsidiaries, taken as a whole. Notwithstanding anything to the contrary herein, for purposes of this Section 5.2(a), each representation or warranty made by the Buyer herein is made without any qualifications or limitations as to materiality (including without limitation any qualifications or limitations made by reference to a material adverse effect on the Buyer) and, without limiting the foregoing, the word "material" and words of similar import shall be deemed deleted from any such representation or warranty; (b) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing except for any failures to perform or comply which, individually or in the aggregate, are not material in amount or significance; (c) the Company shall have received a counterpart executed by the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel Buyer to the Company, dated the Closing Date, releases and stipulations relating to the effect that the Merger will be treated for United States federal income tax purposes Lawsuits attached hereto as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevantExhibit E; (d) the Company Buyer shall have delivered to the Representative the Buyer Certificate; (e) the Representative shall have received a counterpart of the Indemnification Escrow Agreement executed by the Buyer and the Escrow Agent; (f) the Representative shall have received evidence of delivery of the Indemnification Escrow Shares to the Escrow Agent; (g) the Representative shall have received such other certificates and instruments (including certificates of good standing of the Buyer and the Transitory Subsidiary in their jurisdiction of organization, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing; (h) the Representative shall have received from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Buyer, an executive officer opinion in the form attached hereto as Exhibit H addressed to the Equity Holders and dated as of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedClosing Date; and (ei) Parent no Legal Proceeding shall have performed all be pending by or before any Governmental Entity in which a Governmental Entity is a party wherein an unfavorable judgment, order, decree, stipulation or injunction would (A) prevent consummation of its obligations the transactions contemplated by this Agreement or (B) cause the transactions contemplated by this Agreement to be performed by it at or prior to rescinded following the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part to the extent permitted by Applicable Law: (a) Acquiror shall have furnished the Company and the Principal Stockholder with the favorable opinion, dated the Closing Date, of Xxxxxxxx & Worcester LLP, counsel to Acquiror, in the form attached hereto as Exhibit 6.3(a); (b) All agreements, certificates, opinions and other documents shall be reasonably satisfactory in form, scope and substance to the Company and its counsel, and the Company and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers; (c) The representations and warranties of Parent each of Acquiror and Acquiror Merger Sub set forth Subsidiary contained in this Agreement or in any Collateral Document shall be true and correct in all material respects, in each case as of date of this Agreement respects at and as of the Effective Time Closing Date with the same force and effect as though made on and as of such date (unless any such representation or warranty is made only except those which speak as of a specific date, in certain date which event such representation and warranty shall continue to be true and correct in all material respects as of such specified date); (b) date on the Closing Date; each and all of Parent and Merger Sub shall have performed in all material respects the obligationscovenants, and complied in all material respects with the agreements and covenants, required conditions to be performed or satisfied by or complied with by it under this Agreement each of Acquiror and Acquiror Merger Subsidiary hereunder at or prior to the Effective Time; (c) Closing Date shall have been duly performed or satisfied in all material respects; and each of Acquiror and Acquiror Merger Subsidiary shall have furnished the Company with such certificates and other documents evidencing the truth of such representations and warranties and the performance of such covenants, agreements or conditions as the Company shall have requested; (d) The Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Companya favorable opinion, dated the Closing Date, of Xxxxxxxx & Xxxxx, its special tax counsel, to the effect that this Agreement constitutes a tax-free plan of reorganization in accordance with the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning provisions of Section 368(a) of the Code. In rendering such opinion, counsel Code and as to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel consequences thereof to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedStockholders; and (e) Parent The Escrow Agreement shall have performed all been executed and delivered by Acquiror and the escrow agent and Acquiror shall have executed and delivered the Joinder to Registration Rights Agreement in the form of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofExhibit 5.3(b).

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger Tranche I Closing shall be further subject to the satisfaction or waiver at or prior to the Effective Time Closing of each of the following conditions, any of which may be waived, in writing, by the Company: (ai) the The representations and warranties of Parent and Merger Sub set forth the Purchaser contained in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time date of Tranche I Closing as though if made on such date, except to the extent such representations and as of such date (unless any such representation or warranty is warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (bii) each of Parent and Merger Sub The Purchaser shall have performed in all material respects the obligations, and complied in all material respects with the all covenants and agreements and covenants, required by this Agreement to be performed by or complied with by it under this Agreement at prior to the Tranche I Closing; and (iii) At or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Tranche I Closing Date, the Purchaser shall deliver or cause to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel delivered to the Company shall be entitled payment of the purchase price for the Tranche I Shares, by wire transfer of immediately available funds to rely upon customary representations and assumptions provided an account designated in writing by the Company, Merger Sub and Parent that counsel Company at least three (3) business days prior to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedTranche I Closing Date; and (eiv) Parent The Tranche I Shares shall have performed all been authorized for trading on NASDAQ, subject to official notice of its obligations issuance. The foregoing conditions precedent are for the exclusive benefit of the Company and may be waived, in whole or in part, by the Company in writing at any time, in which event the Parties shall have no further liability. If any of the said conditions shall not be complied with or waived by the Company on or before March 15, 2012, then the Company may rescind and terminate this Agreement by written notice to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofPurchaser.

Conditions to Obligations of the Company. The obligation of the ---------------------------------------- Company to effect consummate the Merger Transactions contemplated to occur at the Closing shall be further subject to conditioned upon the satisfaction or waiver fulfillment, at or prior to the Effective Time Closing, of the following conditionsconditions unless waived by the Company: (a) the The representations and warranties of Parent and Merger Sub set forth in this Agreement AT&T PCS contained herein shall be true and correct in all material respects, in each case as of date of this Agreement when made and at and as of the Effective Time Closing (except (i) for representations made as though made on of a specified date, which shall be true and correct as of such date (unless any such representation or warranty is made only as of a specific date, in and (ii) for representations and warranties that are qualified as to materiality which event such representation and warranty shall be true and correct in all material respects respects) with the same force and effect as though made at and as of such specified date);time, except (x) for inaccuracies in respect of the representations and warranties set forth in Section 5.3 and the third sentence of Section 5.7 (disregarding any qualifications as to materiality contained therein) that in the aggregate would not be reasonably expected to have an AT&T PCS Material Adverse Effect or would not adversely affect AT&T PCS's ability to perform its obligations under this Agreement and (y) for inaccuracies in respect of the representations and warranties set forth in Sections 5.10 through 5.16 to the extent that such inaccuracies are caused by acts or omissions (which omissions relate to matters for which the Company has responsibility under the Management Agreement) of the Company during the period that the Company is managing the System under the Management Agreement. (b) each of Parent and Merger Sub AT&T PCS shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, contained herein required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior before the Closing. (c) AT&T PCS shall have delivered to the Effective Time under Company the Subordinated Debt Termination Agreement documents required pursuant to Section 3.2(f)(i). (d) Since the date hereof, neither the Purchased Assets nor the System shall have been adversely affected in any material way by, or sustained any material loss, whether or not insured, as a result of, any fire, flood, lightning, explosion or other calamity or casualty, which shall not have been repaired in all material respects by AT&T PCS, and Tax Receivable Termination Agreementno condemnation proceedings affecting any material portion of the Purchased Assets or the System shall have been commenced. (e) Releases, including duly executed by the payment appropriate parties (other than with respect to Assumed Liabilities), releasing each of all amounts due by Parent the Liens upon the Purchased Assets, each in form and substance reasonably satisfactory to the relevant parties thereto pursuant to the terms thereofCompany, shall have been obtained.

Conditions to Obligations of the Company. The obligation of the Company to effect take the Merger shall actions to be further taken by it at the Closing is subject to the satisfaction of the following additional conditions, unless any such condition is waived, in writing, by the Company: (a) this Agreement and the Merger shall have been adopted and approved by PNCR’s board of directors in accordance with the laws of the State of Florida and by the members of Merger Sub by the vote required by Section 17551(a) of the CCC; (b) PNCR and Merger Sub shall have obtained all of the waivers, Permits, consents, approvals or waiver at other authorizations, and effected all of the registrations, filings and notices (including, but not limited to any filings that are required pursuant to applicable federal and state securities laws) required on its part to be obtained in order to consummate the Merger, except for any which if not obtained or effected would not have a Material Adverse Effect on PNCR and Merger Sub or on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) each of PNCR and Merger Sub shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time of the following conditions:Closing; (ad) the representations and warranties of Parent PNCR and Merger Sub set forth in this Agreement Article 4 shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though Closing Date, except for representations and warranties made on and as of such date (unless any such representation or warranty is made only as of a specific specified date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (ce) the Company shall have received from the opinion Secretary of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPPNCR a certificate (i) certifying that the certificate of incorporation of PNCR and by-laws of PNCR have not been amended since the date hereof, counsel to which shall be attached copies of said amendment or amendments; (ii) certifying the resolutions of the Board of Directors of PNCR adopting and approving this Agreement and the Merger and authorizing the issuance of the shares of PNCR New Common Stock to be issued by virtue of the Merger; and (iii) attesting to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) incumbency of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevantofficers of PNCR; (df) the Company shall have received certificates from the manager of an executive officer of each of Parent and Merger Sub, Sub a certificate (i) certifying that the certifying that its articles of organization and the Merger Sub Operating Agreement have not been amended since the date of this Agreement; (ii) certifying the approval of the Merger by the vote required by Section 17551(a) of the CCC; and (iii) attesting to the incumbency of the manager of Merger Sub; (g) the Company shall have received from the President of PNCR a certificate certifying (i) PNCR has satisfied and complied with all of the obligations under this Agreement and satisfied all of the conditions precedent which are required to be complied with or satisfied by it prior to the Closing Date; and (ii) all of PNCR’s representations and warranties set forth in Sections 7.3(a) this Agreement are true and Section 7.3(b) have been satisfied; andaccurate as of the Closing Date; (eh) Parent the Company shall have performed received from the manager of Merger Sub a certificate certifying (i) Merger Sub has satisfied and complied with all of its the obligations under this Agreement and satisfied all of the conditions precedent which are required to be performed complied with or satisfied by it at or prior to the Effective Time under Closing Date; and (ii) all of Merger Sub’s representations and warranties set forth in this Agreement are true and accurate as of the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of Closing Date; (i) PNCR shall have delivered all amounts due by Parent other documents required to be delivered to the relevant parties thereto pursuant to Company on or before the terms thereof.Closing Date; (j) Xxxx Xxxxxxxxxxx and Xxxxxxx Xxxxxxxx, who are members of the Company, shall be the directors of PNCR on the Closing Date and Xxxxxxx X. Xxxxxx shall have resigned as a director of PNCR;

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Parent shall have obtained (and shall have provided copies thereof to the Company) the written consents of (i) all of the members of its Board of Directors, (ii) all of the members of the Board of Directors of Acquisition Subsidiary, (iii) the sole stockholder of Acquisition Subsidiary, (iv) all of the members of the Board of Directors of Split-Off Subsidiary, (v) the sole stockholder of Split-Off Subsidiary, and (vi) holders of more than 50% of the Parent Common Stock outstanding immediately prior to the Effective Time, in each case to the execution, delivery and performance by the each such entity of this Agreement and/or the other Transaction Documentation to which each such entity a party, in form and substance reasonably satisfactory to the Company; (b) the Parent shall have obtained (and shall have provided copies thereof to the Company) all of the other waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Parent or any of its Subsidiaries, except for waivers, permits, consents, approvals or other authorizations the failure of which to obtain or effect does not, individually or in the aggregate, have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of the Parent and Merger Sub set forth in this Agreement (when read without regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) shall be true and correct in all material respects, in each case as of the date of this Agreement and shall be true and correct as of the Effective Time as though made on and as of such date the Effective Time (unless any provided, however, that to the extent such representation or and warranty is made only as of a specific expressly relates to an earlier date, in which event such representation and warranty shall be true and correct in all material respects as of such specified earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (bd) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time, except for such non-performance or non-compliance as does not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (ce) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Board of Directors of the Parent shall have adopted, and the shareholders of the Parent shall have approved, the assumption of the Assumed Plan; (g) the Parent shall have delivered to the Company a certificate (the “Parent Certificate”) to the effect that each of the conditions specified in clauses (a) and (e) (with respect to the Parent’s due diligence of the Company) of Section 5.1 and clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Parent or the Acquisition Subsidiary) of this Section 5.3 is satisfied in all respects; (h) Each of the Parent and Acquisition Subsidiary shall have delivered to the Company a certificate, validly executed by Secretary of the Parent or the Acquisition Subsidiary, as applicable, certifying as to (i) true, correct and complete copies of its certificate of incorporation and bylaws; (ii) the valid adoption of resolutions of the board of directors and stockholders of the Parent or Acquisition Subsidiary, as applicable (whereby this Agreement, the Merger and the transactions contemplated hereunder were unanimously approved by the board of directors and the requisite vote of the stockholders of Parent or the Acquisition Subsidiary, as applicable); (iii) a good standing certificate from the Secretary of State of the State of Delaware dated within five (5) Business Days prior to the Closing Date; and (iv) incumbency and signatures of the officers of the Parent or the Acquisition Subsidiary, as applicable, executing this Agreement or any other agreement contemplated by this Agreement; (i) The Split-Off Subsidiary shall have delivered to the Company a certificate, certifying as to (i) true, correct and complete copies of its Articles of Incorporation and bylaws; (ii) the valid adoption of resolutions of the board of directors and stockholders of the Split-Off Subsidiary (whereby the Split-Off Agreement and the transactions contemplated thereunder were unanimously approved by the board of directors and the requisite vote of the stockholders of the Split-Off Subsidiary); (iii) a good standing certificate from the Secretary of State of the State of Nevada dated within five (5) Business Days prior to the Closing Date; and (iv) incumbency and signatures of the officers of the Split-Off Subsidiary executing the Split-Off Agreement and any ancillary agreements to which the Split-Off Subsidiary is a party; (j) the Company shall have received the opinion an official stockholder list from Parent’s transfer agent and registrar showing that as of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or immediately prior to the Effective Time under there are 4,503,602 shares of Parent Common Stock issued and outstanding (without giving effect to the Subordinated Debt Termination Agreement cancellation of 3,603,602 shares of Parent Common Stock in connection with the Share Contribution and Tax Receivable Termination Agreementassuming the effect of the dividend declared on May 24, 2016) ; and (k) the Parent shall have delivered to the Company (i) evidence that the Parent’s Board of Directors is authorized to consist of seven (7) individuals, (ii) evidence of the resignations of all individuals who served as directors and/or officers of the Parent immediately prior to the Effective Time, which resignations shall be effective as of the Effective Time, (iii) evidence of the appointment of the following seven (7) persons to serve as directors immediately following the Effective Time: Mxxxxxx Xxxxxx, as Chairman, Mxxx Xxxx, Hxxxxx S. Xxxxxxx III, Mxxxx Xxxxxxxxx, Hxxxx X. Plain, Jr., Sxxxx Xxxxxxx and Bxxxx Xxxxx, and (iv) evidence of the appointment of such executive officers of the Parent to serve immediately following the Effective Time as shall have been designated by the Company, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofMxxxxxx Xxxxxx as Chief Executive Officer and Bxxxxx X. Makes as Chief Financial Officer.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall transactions to be further consummated at the Closing is subject to the satisfaction (or waiver at or prior to in writing by the Effective Time Company) of the following conditions: (a) the representations and warranties of Parent and Merger Sub the Buyer set forth in this Agreement herein shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be have been true and correct in all material respects (other than those that are qualified as to materiality, which shall have been true and correct in all respects) when made and as of such specified the Closing Date, except (i) for changes permitted by this Agreement in accordance with Section 5.27, and (ii) for those representations and warranties that address matters only as of a particular date); (b) each of Parent and Merger Sub the Buyer shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (c) no action, suit or proceeding shall be pending by or before any Governmental Entity seeking to prevent consummation of the transactions contemplated by this Agreement, and no judgment, order, decree, stipulation or injunction enjoining or preventing consummation of the transactions contemplated by this Agreement shall be in effect; (d) the Buyer shall have delivered to the Company a certificate (the “Buyer Certificate”) signed by a duly authorized officer of the Buyer to the effect that each of the conditions specified in clauses (a) through (c) (insofar as clause (c) relates to an action, suit or proceeding involving, or a judgment, order, decree, stipulation or injunction against, the Buyer) of this Section 6.2 have been satisfied; (e) the applicable waiting period (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated; (f) the Buyer shall have obtained (or caused to be obtained) all of the Buyer Third Party Consents set forth on Schedule 6.2(f) to the Buyer Disclosure Letter and obtained all of the federal, state and local governmental approvals which are required to be obtained by the Buyer to consummate the transactions contemplated by this Agreement; (g) the Company shall have received such other customary certificates (such as a certificate of corporate good standing of the opinion Buyer in its jurisdiction of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel incorporation and certificates as to the Company, dated incumbency of officers and the Closing Date, to adoption of authorizing resolutions) as it shall reasonably request in connection with the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedClosing; and (eh) Parent the Buyer shall have performed delivered all of its obligations certificates, instruments, contracts and other documents to be performed delivered by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofSection 7.3(e) (including all applicable Collateral Agreements).

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Parent shall have obtained (and shall have provided copies thereof to the Company) the written consents of (i) all of the members of its Board of Directors, (ii) all of the members of the Board of Directors of Acquisition Subsidiary, (iii) the sole stockholder of Acquisition Subsidiary, (iv) all of the members of the Board of Directors of Split-Off Subsidiary, (v) the sole stockholder of Split-Off Subsidiary, and (vi) holders of more than 50% of the Parent Common Stock outstanding immediately prior to the Effective Time, in each case to the execution, delivery and performance by the each such entity of this Agreement and/or the other Transaction Documentation to which each such entity a party, in form and substance satisfactory to the Company; (b) the Parent shall have obtained (and shall have provided copies thereof to the Company) all of the other waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Parent or any of its Subsidiaries, except for waivers, permits, consents, approvals or other authorizations the failure of which to obtain or effect does not, individually or in the aggregate, have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of the Parent and Merger Sub set forth in this Agreement (when read without regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) shall be true and correct in all material respects, in each case as of the date of this Agreement and shall be true and correct as of the Effective Time as though made on and as of such date the Effective Time (unless any provided, however, that to the extent such representation or and warranty is made only as of a specific expressly relates to an earlier date, in which event such representation and warranty shall be true and correct in all material respects as of such specified earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (bd) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time, except for such non-performance or non-compliance as does not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (ce) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Board of Directors of the Parent shall have adopted, and the stockholders of the Parent shall have approved, the 2015 Plan and the Parent ESPP; (g) the Parent shall have delivered to the Company a certificate (the “Parent Certificate”) to the effect that each of the conditions specified in clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Parent or the Acquisition Subsidiary) of this Section 5.3 is satisfied in all respects; (h) the Company shall have received the opinion an official stockholder list from Parent’s transfer agent and registrar showing that as of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or immediately prior to the Effective Time under there are 5,150,176 shares of Parent Common Stock issued and outstanding (without giving effect to the Subordinated Debt Termination Agreement cancellation of 4,150,171 shares of Parent Common Stock in connection with the Share Contribution); and (i) the Parent shall have delivered to the Company (i) evidence that the Parent’s Board of Directors is authorized to consist of seven (7) individuals, (ii) evidence of the resignations of all individuals who served as directors and/or officers of the Parent immediately prior to the Effective Time, which resignations shall be effective as of the Effective Time, (iii) evidence of the appointment of the following seven (7) persons to serve as directors on Parent’s Board of Directors effective immediately following the Effective Time: Xxxxx X. Xxxxxx (as Chairman), Xxxxx X. Xxxxxxx, Ph.D, Xxxxxx Xxxxxxxx, M.D., Xxxxx Xxxxxx, M.D., Xxxxx Xxxxxxxxx, M.D., Xxxx X. Gold, M.D. and Tax Receivable Termination AgreementXxxxxx Xxxx, and (iv) evidence of the appointment of such executive officers of the Parent to serve immediately following the Effective Time as shall have been designated by the Company, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofXxxxx X. Xxxxxx as Chief Executive Officer and President and Xxxxx Xxxxxxxx as Chief Financial Officer.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the The representations and warranties of Parent the Buyer and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time Closing Date as though made on and as of the Closing Date (except (i) to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific particular date, in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified datedate and (ii) where the failure to be true and correct (without regard to any materiality qualifications contained therein);, individually or in the aggregate, has not resulted in any material adverse effect on the ability of the Buyer or Merger Sub to consummate, including any material delay in the Buyer’s ability to consummate, the transactions contemplated by this Agreement). (b) each of Parent the Buyer and Merger Sub shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (c) no Legal Proceeding shall be pending or threatened in writing wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (d) the Buyer shall have delivered to the Company the Buyer Closing Certificate; (e) the Buyer shall have delivered to the Company the Escrow Agreement executed by the Buyer, the Company Stockholder Representative and the Escrow Agent; (f) this Agreement and the Merger shall have received the Requisite Stockholder Approval; (g) all applicable waiting periods (and any extensions thereof) under the Xxxx- Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated; and (h) the Company shall have received such other certificates and instruments (including certificates of good standing of the opinion Buyer and Merger Sub in their jurisdiction of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPorganization, counsel certified charter documents, certificates as to the Company, dated incumbency of officers and the Closing Date, to adoption of authorizing resolutions) as it shall reasonably request in connection with the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The In addition to the conditions set forth in Section 7.1, the obligation of the Company to effect consummate this Agreement and the Merger shall be further Transactions are subject to the satisfaction or waiver fulfillment, at or prior to the Effective Time Closing, of the following conditionsadditional conditions precedent: (a) Each of the representations and warranties of Parent and Merger Sub set forth Buyer contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Section 3 shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms as to materiality, which representations and warranties as so qualified shall be true and correct in all respects) as of such specified date); (b) each the date of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes and as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinionclosing as though made on and as of the Closing; Buyer shall, counsel to on or before the Company shall be entitled to rely upon customary representations and assumptions provided by the CompanyClosing, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations hereunder which by the terms hereof are to be performed on or before the Closing. (b) There shall have been no event or series of events that has had or would reasonably be expected to have a Buyer Material Adverse Effect. (c) All actions, proceedings, instruments and documents required to carry out this Agreement and the transactions contemplated hereby and all related legal matters contemplated by it at or prior this Agreement shall have been approved by Xxxxxxx & Xxxxxxxx Ltd., as counsel for the Company, and such counsel shall have received on behalf of the Company such other certificates, opinions and documents in form satisfactory to such counsel as the Company may reasonably require from Buyer to evidence compliance with the terms and conditions hereof as of the Closing and the correctness as of the Closing of the representations and warranties of Buyer and the fulfillment of its covenants. (d) On the Closing Date, the Company shall have received from Buyer a xxxx of sale, in form and substance reasonably satisfactory to the Effective Time under the Subordinated Debt Termination Agreement Company and Tax Receivable Termination Agreementits counsel, including the payment transferring all of all amounts due by Parent Buyer's right, title and interest in and to the relevant parties thereto pursuant Fiber Ring Assets to the terms thereofCompany. (e) On the Closing Date, the Company shall have received from XxXxxxxxx, Will & Xxxxx, counsel for Buyer, an opinion as of said date, in form set forth in Exhibit G hereto.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger transactions contemplated by this Agreement at the Closing shall be further subject to the satisfaction fulfillment or waiver the Company’s waiver, at or prior to the Effective Time Closing Date, of each of the following conditions: (a) the The representations and warranties of Parent and Merger Sub set forth Buyer contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Article IV shall be true and correct in all material respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all material respects as of that specified date);, except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on Buyer’s or Bxxxx’s ability to consummate the transactions contemplated hereby. (b) each of Parent and Merger Sub Buyer shall have duly performed in all material respects the obligations, and complied in all material respects with the agreements all agreements, covenants and covenants, conditions required by this Agreement to be performed by or complied with by it under this Agreement at or prior to or on the Effective Time;Closing Date. (c) the The Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Companya certificate, dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as Date and signed by a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive duly authorized officer of Buyer, that each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a(a) and Section 7.3(b(b) have been satisfied; and. (d) The Company shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the consummation of the Transaction and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby. (e) Parent shall have performed all of its obligations to be performed by it at On or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination execution of this Agreement, including the payment of all amounts due by Parent Buyer shall have delivered to the relevant parties thereto Company cash in an amount equal to the Purchase Price for all Shares to be purchased pursuant to this Agreement) by wire transfer in immediately available funds, to an account or accounts that has been designated by the terms thereofCompany in a written notice to Buyer.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Parent shall have obtained (and shall have provided copies thereof to the Company) the written consents of (i) all of the members of its Board of Directors, (ii) all of the members of the Board of Directors of Acquisition Subsidiary, and (iii) the sole stockholder of Acquisition Subsidiary, in each case to the execution, delivery and performance by each such entity of this Agreement and/or the other Transaction Documentation to which each such entity a party, in form and substance reasonably satisfactory to the Company; (b) the Parent shall have obtained (and shall have provided copies thereof to the Company) all of the other waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Parent or any of its Subsidiaries, except for waivers, permits, consents, approvals or other authorizations the failure of which to obtain or effect does not, individually or in the aggregate, have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of the Parent and Merger Sub set forth in this Agreement (when read without regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) shall be true and correct in all material respects, in each case as of the date of this Agreement and shall be true and correct as of the Effective Time as though made on and as of such date the Effective Time (unless any provided, however, that to the extent such representation or and warranty is made only as of a specific expressly relates to an earlier date, in which event such representation and warranty shall be true and correct in all material respects as of such specified earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (bd) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time, except for such non-performance or non-compliance as does not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (ce) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Board of Directors of the Parent and the stockholders of the Parent shall each have adopted the 2018 Plan, and the Board of Directors of the Parent shall have approved the assumption of the Assumed Plan; (g) the Parent shall have delivered to the Company a certificate (the “Parent Certificate”) to the effect that each of the conditions specified in clause (b) (with respect to the Parent’s due diligence of the Company) of Section 5.1 and clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Parent or the Acquisition Subsidiary) of this Section 5.3 is satisfied in all respects; (h) Each of the Parent and Acquisition Subsidiary shall have delivered to the Company a certificate, validly executed by the Secretary of the Parent or the Acquisition Subsidiary, as applicable, certifying as to (i) true, correct and complete copies of its certificate of incorporation and bylaws; (ii) the valid adoption of resolutions of (A) the board of directors of the Parent and the Acquisition Subsidiary, as applicable, and the Parent as sole stockholder of the Acquisition Subsidiary (whereby this Agreement, the Merger and the transactions contemplated hereunder were unanimously approved by the board of directors of Parent and the Acquisition Subsidiary and by the Parent as the sole stockholder of the Acquisition Subsidiary) and (B) a majority of the stockholders of Parent approving the matters described in Sections 4.12 and 4.13; (iii) a good standing certificate from the Secretary of State of the State of Delaware dated within five (5) Business Days prior to the Closing Date; (iv) incumbency and signatures of the officers of the Parent or the Acquisition Subsidiary, as applicable, executing this Agreement or any other agreement contemplated by this Agreement; and (v) the list of Parent stockholders as of immediately prior to the Effective Time, who hold all 3,500,000 shares of Parent Common Stock then issued and outstanding (on a fully diluted basis); (i) the Company shall have received a stockholder list from the opinion Parent showing that as of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or immediately prior to the Effective Time there are 3,500,000 shares of Parent Common Stock issued and outstanding (on a fully diluted basis); and (j) the Parent shall have delivered to the Company (i) evidence that the Parent’s Board of Directors is, as of the Effective Time, authorized to consist of five (5) individuals, (ii) evidence of the resignations of all individuals who served as directors and/or officers of the Parent immediately prior to the Effective Time, which resignations shall be effective as of the Effective Time, (iii) evidence of the appointment of the following five (5) persons to serve as directors immediately following the Effective Time: Xxx Xxxxx Xxxxxx, Ph.D. as Chairman of Parent’s Board of Directors, J. Xxxxxxx Xxxx, Xxxxxx X. Xxxxx, Ph.D., Xxxxxxx Xxxxx and Xxxxxxx X. Xxxxxxx, and (iv) evidence of the appointment of such executive officers of the Parent to serve immediately following the Effective Time as shall have been designated by the Company, including Xxx Xxxxx Xxxxxx as Chief Executive Officer; (k) the Auditor Letter shall have been furnished to the Parent and the Parent shall have delivered a copy of such Auditor Letter to the Company, and the Parent Auditor shall have consented to the filing of the Auditor Letter in the Super 8-K; and (l) the Parent shall be in compliance in all material respects with all requirements of applicable securities laws, including, without limitation, the filing of reports required by the Exchange Act, and shall have taken all actions with respect thereto as shall be required or reasonably requested by the Company in connection therewith. (m) prior to the Effective Time, Parent shall take all such steps as may be required to cause any acquisitions of Parent Common Stock, any options to purchase Parent Common Stock or any other derivatives of Parent Common Stock, in connection with the Contemplated Transactions, by each individual who is reasonably expected to become subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent, to be exempt under Rule 16b-3 promulgated under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofExchange Act.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further transactions contemplated by this Agreement is subject solely to (i) the satisfaction or waiver by all Parties of the condition set forth in Section 5.1, and (ii) the satisfaction or waiver in writing by the Company at or prior to the Effective Time Closing of the following conditions: (a) The Stockholders Agreement shall have been executed and delivered by Purchaser in the form provided for herein or with such changes as are otherwise agreed to by the Company and the other parties thereto; (b) All of (i) the conditions to closing of the Merger and the other transactions expressly contemplated by the Merger Agreement shall have been satisfied or waived in accordance with the terms of the Merger Agreement and (ii) the Merger and the other transactions contemplated by the Merger Agreement (other than those transactions that by their nature are to be consummated following the closing of the Merger) shall be consummated concurrently with the Closing in accordance with the terms of the Merger Agreement; (c) The representations and warranties of Parent and Merger Sub set forth Purchaser contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Article IV shall be true and correct in all material respects (other than representations and warranties that are qualified by materiality, material adverse effect or words of similar import, which representations and warranties shall be true and correct in all respects) at and as of such specified date)the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; (bd) each of Parent and Merger Sub Purchaser shall have performed in all material respects the obligations, performed all obligations and complied in with all material respects with the agreements and covenants, covenants required by this Agreement to be performed by or complied with by it under this Agreement at or prior to the Effective Time;Closing; and (ce) the Company Purchaser shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel delivered to the Company shall be entitled to rely upon customary representations a certificate, dated as of the Closing Date and assumptions provided signed by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an its Chief Executive Officer or another senior executive officer of each of Parent and Merger Subofficer, certifying that the conditions set forth in Sections 7.3(a5.2(c) and Section 7.3(b5.2(d) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.

Conditions to Obligations of the Company. The Company’s obligation to sell and issue the Shares at the Closing is subject to the fulfillment to the satisfaction of the Company to effect the Merger shall be further subject to the satisfaction or waiver at on or prior to the Effective Time Closing Date of the following conditions, any of which may be waived by the Company: (a) The representations and warranties made by the Investors in Section 5 hereof, other than the representations and warranties of Parent contained in Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and Merger Sub set forth in this Agreement shall be true and correct in all material respects5.9 (the “Investment Representations”), in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (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 in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of such specified said date); (b) each . The Investment Representations shall be true and correct in all respects when made, and shall be true and correct in all respects on the Closing Date with the same force and effect as if they had been made on and as of Parent and Merger Sub said date. The Investors shall have performed in all material respects the obligations, all obligations and complied in all material respects with the agreements and covenants, conditions herein required to be performed or observed by or complied with by it under this Agreement at them on or prior to the Effective Time;Closing Date. (b) The Investors shall have executed and delivered the Registration Rights Agreement. (c) the Company No statute, rule, regulation, executive order, decree, ruling, injunction, action, proceeding or interpretation shall have received been enacted, entered, promulgated, endorsed or adopted by any court or governmental authority of competent jurisdiction or any self-regulatory organization or trading market or the opinion staff of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) any of the Code. In rendering such opinionforegoing, counsel to having authority over the Company shall be entitled to rely upon customary representations and assumptions provided matters contemplated hereby which questions the validity of, or challenges or prohibits the consummation of, any of the transactions contemplated by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;this Agreement (d) All conditions to the obligation of the Company to consummate the Bialystok Acquisition shall have been fulfilled to the Company’s satisfaction and contemporaneous with the Closing the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that consummate the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; andBialystok Acquisition. (e) Parent Each of the Agents shall have performed all of its obligations to be performed by it at or prior to executed and delivered a Placement Agent Certificate in the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.form attached hereto as Exhibit C.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions, unless any such condition is waived, in writing, by the Company: (a) the representations Target and warranties of Parent and the Merger Sub set forth in this Agreement shall be true and correct in have obtained all material respects, in each case as of date of this Agreement and as of the Effective Time as though made waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices (including, but not limited to any filings that are required with the SEC prior to the consummation of the Merger), except for any which if not obtained or effected would not have a Material Adverse Effect on and as the Target or the Merger Sub or on the ability of such date (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 in all material respects as of such specified date)the Parties to consummate the transactions contemplated by this Agreement; (b) each of Parent the Target and the Merger Sub shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (c) the Company representations and warranties of the Target and the Merger Sub set forth in Article IV shall have received the opinion be true and correct as of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated except for United States federal income tax purposes representations and warranties made as of a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinionspecified date, counsel to the Company which shall be entitled to rely upon customary representations true and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevantcorrect as of such date; (d) the Company shall have received certificates from the Secretary of an executive officer the Target a certificate (i) certifying the Certificate of each Incorporation of Parent the Target, (ii) certifying the Bylaws of the Target, (iii) certifying the resolutions of the Board of Directors of the Target, and (iv) attesting to the incumbency of the officers of the Target; (e) the Company shall have received from the Secretary of the Merger Sub a certificate (i) certifying the Certificate of Incorporation of the Merger Sub, (ii) certifying that the conditions set forth Bylaws of the Merger Sub, (iii) certifying the resolutions of the Board of Directors and the sole stockholder of the Merger Sub, and (iv) attesting to the incumbency of the officers of the Merger Sub; (f) Target shall have delivered the certificates described in Sections 7.3(aSection 2.4(b) hereof, as applicable, and Section 7.3(b) have been satisfiedall other documents required to be delivered to the Target on or before the Closing Date; and (eg) Parent all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall have performed all of its obligations to be performed by it at or prior reasonably satisfactory in form and substance to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofCompany.

Conditions to Obligations of the Company. The Company’s obligation to sell and issue the Notes at the Closing is subject to the fulfillment to the satisfaction of the Company to effect the Merger shall be further subject to the satisfaction or waiver at on or prior to the Effective Time Closing Date of the following conditions, any of which may be waived by the Company: (a) the The representations and warranties of Parent and Merger Sub set forth made by the Purchasers in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Section 6 hereof shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of such specified said date); (b) each of Parent and Merger Sub . The Purchasers shall have performed in all material respects the obligations, all obligations and complied in all material respects with the agreements and covenants, conditions herein required to be performed or observed by them on or complied with by it under this prior to the Closing Date. (b) The Purchasers shall have executed and delivered the Registration Rights Agreement and the Subordination Agreement to the Company at or prior to Closing; provided, that, this condition shall be satisfied with respect to each Purchaser who has executed and delivered the Effective Time;Registration Rights Agreement and the Subordination Agreement. (c) Each of the Purchasers shall have delivered to the Company the Aggregate Purchase Price set forth opposite such Purchaser’s name on Schedule I affixed hereto. (d) The Company shall have obtained the acceptance of TSX and the approval of AMEX, and all of which shall be and remain so long as necessary in full force and effect. (e) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Note Documents. (f) The Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) from each of the Code. In rendering such opinionPurchasers duly and accurately completed disclosures as required under this Agreement in the forms specified in Schedule III, counsel Schedule IV and Schedule V to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;this Agreement. (dg) the The Company shall have received certificates obtained the consent of an executive officer of each of Parent and Merger SubJPMorgan Chase Bank, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior N.A. with respect to the Effective Time under consummation of the Subordinated Debt Termination Agreement Private Placement and Tax Receivable Termination Agreement, including the payment of all amounts due transactions contemplated by Parent to the relevant parties thereto pursuant to the terms thereofNote Documents.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction (or waiver at or prior to by the Effective Time Company) of the following conditions: (a) (i) each of the representations and warranties of Parent the Buyer and Merger Sub that are qualified by reference to materiality or any similar qualification shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are specifically made as of a particular date in which case such representations and warranties shall be true and correct in all respects as of such date) and (ii) all representations and warranties of the Buyer and Merger Sub set forth in this Agreement (other than the representations and warranties described in the foregoing clause (i)) shall be true and correct in all material respects, in each case respects as of the date of this Agreement and as of the Effective Time Closing Date as though made on and as of the Closing Date (except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (b) each of Parent the Buyer and Merger Sub shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (c) the Company no Legal Proceeding shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPbe pending or threatened in writing wherein an unfavorable judgment, counsel to the Companyorder, dated the Closing Datedecree, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(astipulation or injunction would (i) prevent consummation of the Code. In rendering transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such opinionjudgment, counsel to the Company order, decree, stipulation or injunction shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;in effect; and (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Escrow Agreement, including duly executed by the payment of all amounts due by Parent to Buyer and the relevant parties thereto pursuant to the terms thereofEscrow Agent.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Buyer shall have effected all of the registrations, filings and notices referred to in Section 4.2 which are required on the part of the Buyer, except for any which if not obtained or effected would not have a Buyer Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (b) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in the first sentence of Section 3.1 and Section 3.3 and any representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are not so qualified (other than those set forth in Section 3.1 and Section 3.3) shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time as though made on and as of the Effective Time, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date or as of the date of this Agreement (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (bc) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (d) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) have a Buyer Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (e) the Buyer shall have delivered to the Company a certificate (the "Buyer Certificate") to the effect that each of the conditions specified in clause (c) of Section 5.1 and in clauses (a) through (d) (insofar as clause (d) relates to Legal Proceedings involving the Buyer) of this Section 5.3 is satisfied in all respects; (f) the Company shall have received from counsel to the Buyer and the Transitory Subsidiary an opinion with respect to the matters set forth in EXHIBIT H attached hereto, addressed to the Company and dated as of Xxxxxxx Xxxxxxx & Xxxxxxxx the Closing Date; (g) the Company shall have received an opinion from Coolxx Xxxward LLP, counsel in a form reasonably satisfactory to the Company, dated the Closing Date, to the effect that the Merger will be treated constitute a reorganization for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering ; provided that if Coolxx Xxxward LLP does not render such opinion, counsel this condition shall nonetheless be deemed satisfied if Hale xxx Dorr XXX renders such opinion to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;; and (dh) the Company shall have received such other certificates and instruments (including without limitation certificates of an executive officer good standing of each the Buyer and the Transitory Subsidiary in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. (a) The Company's obligation of to issue and sell the Company to effect Series E Preferred Stock at the Merger shall be further Preferred Stock Closing is subject to the satisfaction or waiver at satisfaction, on or prior to the Effective Time such Preferred Stock Closing, of the following conditions: (ai) the The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Section 7(a) shall be true and correct in all material respects at the date of the Preferred Stock Closing. (ii) The Purchaser shall have performed and complied with all agreements and conditions required to be performed or complied with by Purchaser under this Agreement on or before the Preferred Stock Closing. (iii) As of the Preferred Stock Closing, the sale and issuance of the Series E Preferred Stock shall be legally permitted by all laws and regulations to which any Purchaser and the Company are subject. (iv) The Purchaser shall have executed and delivered the Stockholders Agreement as of such specified date);provided herein. (b) each The Company's obligation to issue and sell the Common Stock at the Common Stock Closing is subject to the satisfaction, on or prior to such Common Stock Closing, of Parent and Merger Sub the following conditions: (i) Colonial shall have performed in all material respects the obligations, and complied in with all material respects with the agreements and covenants, conditions required to be performed by or complied with by it Colonial under this Agreement at and the Contribution Agreement on or prior before the Common Stock Closing. (ii) As of the Common Stock Closing, the sale and issuance of the Common Stock shall be legally permitted by all laws and regulations to which Colonial and the Company are subject. (iii) A registration statement relating to the Effective Time; (c) the Company Initial Public Offering shall have received become effective and no stop order suspending the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company effectiveness thereof shall have been issued and no proceedings therefor shall be entitled to rely upon customary representations and assumptions provided pending or threatened by the Company, Merger Sub Securities and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofExchange Commission.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger Distributions hereunder shall be further subject to the satisfaction or waiver at or prior to the Effective Time of each of the following conditions: (a) the representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as All of the Effective transactions contemplated by Article II hereof to occur prior to the Distribution Time as though made on and as of such date (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 in all material respects as of such specified date);have been consummated. (b) each of Parent and Merger Sub The Distribution Shares to be issued in the Distributions shall have performed in all material respects been approved for trading on the obligationsNASDAQ, and complied in all material respects with the agreements and covenants, required subject only to be performed by or complied with by it under this Agreement at or prior to the Effective Time;official notice of issuance. (c) All filings required to be made prior to the Distribution Time with, and all consents, approvals and authorizations required to be obtained prior to the Distribution Time from, any government or any court, arbitral tribunal, administrative agency or commission or other regulatory authority, agency or commission, governmental or otherwise, in connection with the consummation of the Preliminary Transactions, the Distributions and any other transaction contemplated hereby shall have been made or obtained, except where the failure to make or obtain the same would not, individually or in the aggregate, have a material adverse effect on the business, properties, results of operations or financial condition of the Company, the Distributed Companies or any of their respective Subsidiaries, or on the ability of any thereof to consummate the transactions contemplated hereby, or to perform its obligations under this Agreement or any of the Ancillary Agreements to which it is or will be a party. (d) Each of the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and shall be in full force and effect in accordance with its terms. (e) Each of the registration statements on Forms S-1 under the Securities Act filed with the SEC by the Distributed Companies in connection with the Distributions shall have become effective under the Exchange Act, no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated by the SEC; and the Information Statements shall have been or shall be simultaneously or promptly mailed to holders of Distribution Shares in accordance with the rules, regulations and policies of the SEC. (f) No statute, rule or regulation or temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition shall be in effect that prohibits consummation of the Preliminary Transactions or the Distributions. (g) All conditions to the Tender Offer shall have been satisfied or waived by the Company, and the Tender Offer shall have been consummated prior to or on the Distribution Date. (h) The Company and each of the Distributed Companies shall have received the an opinion of Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxx & Xxxxxxxx LLPXxxxxxxxx, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States U.S. federal income tax purposes the Distributions will qualify as a reorganization within tax-free spin-offs under Section 355 of the meaning of Code and will not be taxable under Section 368(a355(e) of the Code. In rendering such opinion, such counsel to the Company shall be entitled to rely upon customary on certain assumptions and representations and assumptions provided by the Company, Merger Sub the Distributed Companies and Parent CDR-PC and certain other information, data, documentation and other materials that counsel to the Company reasonably Xxxxxx, Xxxxxx & Xxxxxxxxx deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofnecessary.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Parent shall have obtained (and shall have provided copies thereof to the Company and its Subsidiaries) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Parent, except for any the failure of which to obtain or effect would not, individually or in the aggregate, have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (b) the representations and warranties of the Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and shall be true and correct as of the Effective Time as though made on and as of such date (unless the Effective Time, except to the extent that the inaccuracy of any such representation or warranty is made only as the result of events or circumstances occurring subsequent to the date of this Agreement and any such inaccuracies, individually or in the aggregate, would not have a specific date, Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement (it being agreed that any materiality qualifications in which event such representation particular representations and warranty warranties shall be true and correct disregarded in all material respects as determining whether any such inaccuracies would have a Parent Material Adverse Effect for purposes of such specified datethis Section 5.3(b)); (bc) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (cd) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) have, individually or in the aggregate, a Parent Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (e) the Company Parent shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel delivered to the Company, dated Company a certificate (the Closing Date, “Parent Certificate”) to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) each of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; conditions specified in clauses (a) through (d) (insofar as clause (d) relates to Legal Proceedings involving the Company shall have received certificates Parent) of an executive officer this Section 5.3 is satisfied in all respects (f) the total number of each shares of Parent Common Stock issued and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or outstanding immediately prior to the Effective Time under shall equal 4,000,000 shares,after giving effect to the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including shares of Parent Common Stock to be retired; (g) Parent’s liabilities on the payment date of the Closing shall not exceed $5,000; (h) the Parent shall have adopted the Parent Option Plan. (i) on the closing date Parent shall be current with respect to the filing of all amounts due by Parent SEC reports that are required to be filed with the relevant parties thereto pursuant to Securities and Exchange Commission; (j) the terms thereof.Merger, the issuance of the Merger Shares and any other transactions contemplated under this Agreement relating thereto, will not require the approval of Parent’s stockholders;

Conditions to Obligations of the Company. The obligation of the Company to effect take the Merger shall actions to be further taken by it at the Closing is subject to the satisfaction of the following conditions, in addition to those set forth in Section 5.01, unless any such condition is waived in writing, by the Company: (a) this Agreement and the Merger shall have been adopted and approved by MWKI and in accordance with the provisions of chapters 78 and 92A of the NRS and by the directors Merger Sub in accordance with Section 11.05 of the BCA and the Stockholders of Merger Sub in accordance with Section 11.25 of the BCA; (b) MWKI and Merger Sub shall have obtained all of the waivers, Permits, consents, approvals or waiver at other authorizations, and effected all of the registrations, filings and notices (including, but not limited to any filings that are required pursuant to applicable federal and state securities laws) required on its part to be obtained in order to consummate the Merger, except for any which if not obtained or effected would not have a Material Adverse Effect on MWKI and Merger Sub or on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) each of MWKI and Merger Sub shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time Closing; (d) MWKI shall have filed with the Secretary of State of the following conditions:State of Nevada a certificate which states that no shares of the Series A Preferred Stock and the Series B Preferred Stock are outstanding and which contains a resolution of the board of directors authorizing the withdrawal of the certificates of designation establishing the Series A Preferred Stock and the Series B Preferred Stock. (ae) the Company shall have filed with the Secretary of State of the State of Nevada a certificate which establishes the Series C Stock, in the form annexed hereto as Exhibit A; (f) MWKI shall have completed the closing of a private offering of 498,000,000 shares of MWKI Common Stock and 202,000 shares of MWKI Series C Preferred Stock, in which it will have raised $25,000.00 (the “Private Placement”); (g) Xxxxx Xxxx shall be the sole director of MWKI on the Closing Date; (h) At least 10 days prior to the Closing Date Schedule 14F-1 relating to the appointment of the persons named in Section 5.3(j) of this Agreement shall have been filed with the SEC; (i) Xxxxxxx X. Xxxxxx, the holder of 5,000,000 shares of MWKI Series A Preferred Stock and 5,000,000 shares of MWKI Series B Preferred Stock and the obligee of the indebtedness of MWKI described as “Officer Loan” in the financial statements of MWKI shall have surrendered all of said shares of MWKI Series A Preferred Stock and shall have delivered and complied with an undertaking (i) to surrender said shares of MWKI Series B Preferred Stock, (ii) to extinguish all such indebtedness of MWKI and any other indebtedness of MWKI to him as would be entered as “Officer Loan,” “Loan Payable, Officer,” “Related Party Payable” or another like description in the financial statements of MWKI prepared as of the Closing Date in accordance with GAAP and MWKI’s past practice and (iii) indemnify MWKI from and holding it harmless against all other Liabilities that would be set forth in the financial statements of MWKI prepared as of the Closing Date in accordance with GAAP or that arose or shall arise from any event that occurred prior to the Closing Date, all in exchange for (i) MWKI’s issuance to him of a Promissory Note in the principal amount of $400,000.00 in the form annexed hereto as Exhibit B, secured by a Pledge Agreement, in the form annexed hereto as Exhibit C (the “Pledge Agreement”) and (ii) MWKI’s payment to him as a prepayment of $25,000.00 of the principal amount of the Promissory Note; and (j) the representations and warranties of Parent MWKI and Merger Sub set forth in this Agreement Article 4 shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though Closing Date, except for representations and warranties made on and as of such date (unless any such representation or warranty is made only as of a specific specified date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (ck) the Company shall have received from the opinion Secretary of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPMWKI a certificate (i) certifying that the Certificate of Incorporation and By-laws of MWKI have not been amended since the date hereof, counsel (ii) certifying the resolutions of the Board of Directors of MWKI adopting and approving this Agreement in accordance with the provisions of chapters 78 and 92A of the NRS and authorizing the issuance of the shares of MWKI Series C Preferred Stock to be issued by virtue of the Merger; and (iii) attesting to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) incumbency of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevantofficers of MWKI; (dl) the Company shall have received certificates from the Secretary of an executive officer of each of Parent and Merger Sub, Sub a certificate (i) certifying that the Articles of Incorporation and By-laws of Merger Sub have not been amended since the date hereof, (ii) certifying the resolutions of the Board of Directors of Merger Sub adopting and approving this Agreement and the Merger in accordance with Section 11.05 of the BCA, (iii) certifying that this Agreement and the Merger were approved by the sole stockholder of Merger Sub in accordance with the provisions of in accordance with Section 11.25 of the BCA, and (iv) attesting to the incumbency of the officers of Merger Sub; (m) the Company shall have received from the President of MWKI a certificate certifying (i) MWKI has satisfied and complied with all of the obligations under this Agreement and satisfied all of the conditions precedent which are required to be complied with or satisfied by it prior to the Closing Date; and (ii) all of MWKI’s representations and warranties set forth in Sections 7.3(a) this Agreement are true and Section 7.3(b) have been satisfied; andaccurate as of the Closing Date; (en) Parent the Company shall have performed received from the President of Merger Sub a certificate certifying (i) Merger Sub has satisfied and complied with all of its the obligations under this Agreement and satisfied all of the conditions precedent which are required to be performed complied with or satisfied by it at or prior to the Effective Time under Closing Date; and (ii) all of Merger Sub’s representations and warranties set forth in this Agreement are true and accurate as of the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of Closing Date; (o) MWKI shall have delivered all amounts due by Parent other documents required to be delivered to the relevant parties thereto pursuant Company on or before the Closing Date; (p) all actions to be taken by MWKI and Merger Sub in connection with the consummation of the transactions contemplated hereby, and all certificates, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the terms thereofCompany.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Parent shall have obtained (and shall have provided copies thereof to the Company) the written consents of (i) all of the members of its Board of Directors, (ii) all of the members of the Board of Directors of Acquisition Subsidiary, (iii) the sole stockholder of Acquisition Subsidiary, (iv) all of the members of the Board of Directors of Split-Off Subsidiary, (v) the sole stockholder of Split-Off Subsidiary, and (vi) holders of more than 50% of the Parent Common Stock outstanding immediately prior to the Effective Time, in each case to the execution, delivery and performance by the each such entity of this Agreement and/or the other Transaction Documentation to which each such entity a party, in form and substance satisfactory to the Parent; (b) the Parent shall have obtained (and shall have provided copies thereof to the Company) all of the other waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Parent or any of its Subsidiaries, except for waivers, permits, consents, approvals or other authorizations the failure of which to obtain or effect does not, individually or in the aggregate, have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of the Parent and Merger Sub set forth in this Agreement (when read without regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) shall be true and correct in all material respects, in each case as of the date of this Agreement and shall be true and correct as of the Effective Time as though made on and as of such date the Effective Time (unless any provided, however, that to the extent such representation or and warranty is made only as of a specific expressly relates to an earlier date, in which event such representation and warranty shall be true and correct in all material respects as of such specified earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (bd) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time, except for such non-performance or non-compliance as does not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (ce) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Board of Directors of the Parent shall have adopted, and the stockholders of the Parent shall have approved, the Parent Equity Plan and approved the issuance of the options described in Section 4(f) of the Executive Employment Agreements; (g) the Parent shall have delivered to the Company a certificate (the “Parent Certificate”) to the effect that each of the conditions specified in clauses (a) of Section 5.1 and clauses (a) through (f) (insofar as clause (e) relates to Legal Proceedings involving the Parent or the Acquisition Subsidiary) of this Section 5.3 is satisfied in all respects, and covering such other matters as the Company shall reasonably request; (h) the Company shall have received a certificate of Parent’s transfer agent and registrar certifying that as of the opinion Closing Date there are 28,597,804 shares of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel Parent Common Stock issued and outstanding (without giving effect to the Company, dated retirement of 23,100,000 shares of Parent Common Stock in connection with the Closing Date, to Share Contribution); (i) the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel Parent shall have delivered to the Company (i) evidence that the Parent’s Board of Directors is authorized to consist of seven (7) individuals, (ii) evidence of the resignations of all individuals who served as directors and/or officers of the Parent immediately prior to the Effective Time, which resignations shall be entitled effective as of the Effective Time, (iii) evidence of the appointment of the following five (5) directors to rely upon customary representations serve immediately following the Effective Time: Axxxxx X. Xxxxxxxxxxxx, Jxxx X. Xxxxxxxxx, Axxxx Xxxxxxxxx, Bxxxx Xxxxxxxx, and assumptions provided Dxxxxx Xxxxx and (iv) evidence of the appointment of such executive officers of the Parent to serve immediately following the Effective Time as shall have been designated by the Company, Merger Sub including Jxxx X. Xxxxxxxxx as Executive Chairman, and Parent that counsel to the Company reasonably deems relevant;Axxxxx X. Xxxxxxxxxxxx as Chief Executive Officer (dj) The Parent shall have assumed the Executive Employment Agreements. (k) the Company shall have received certificates of an executive officer of each of from Cxxxx Kxxxx Xxxxx LLP, counsel to the Parent and Merger Subthe Acquisition Subsidiary, certifying that an opinion with respect to the conditions matters set forth in Sections 7.3(a) Exhibit H attached hereto, addressed to the Company and Section 7.3(b) have been satisfieddated as of the Closing Date; and (el) the Parent, each Parent Company Stockholder and each investor in the Private Placement Offering shall have performed all of its obligations to be performed by it at or prior executed and delivered to the Effective Time under Company the Subordinated Debt Termination Voting Agreement and Tax Receivable Termination Agreement, including in substantially the payment form of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofExhibit I attached hereto.

Conditions to Obligations of the Company. The obligation Notwithstanding any other provision of this Agreement, the obligations of the Company to effect consummate the Merger and the other transactions contemplated hereby shall be further subject to the satisfaction or waiver satisfaction, at or prior to the Effective Time Closing Date, of the following conditions: (a) There shall not be instituted and pending or threatened any Action (i) challenging the Merger or otherwise seeking to restrain or prohibit the consummation of the transactions contemplated hereby, or (ii) seeking to prohibit the direct or indirect ownership or operation by Buyer of all or a material portion of the business or assets of the Company, or to compel Buyer or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Buyer. (b) The representations and warranties of Parent and Merger Sub set forth Buyer in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement respects on and as of the Effective Time Closing Date with the same effect as though if made on the Closing Date, and as of such date (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 in all material respects as of such specified date); (b) each of Parent and Merger Sub Buyer shall have performed in complied with all material respects the obligations, covenants and complied in all material respects with the agreements and covenants, required satisfied all conditions on its part to be performed by or complied with by it under this Agreement at satisfied on or prior to the Effective Time;Closing Date. (c) the The Company shall have received a certificate of the opinion Secretary of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, Buyer dated the Closing Date, to Date in substantially the effect that the Merger will be treated for United States federal income tax purposes form attached as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;Annex I hereto. (d) the The Company shall have received certificates a certificate of an executive officer the President of each of Parent and Merger Sub, certifying that Buyer in substantially the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; andform attached as Annex J hereto. (e) Parent The Company shall have performed received a certificate of the Secretary of Newco dated the Closing Date in substantially the form attached as Annex K hereto. (f) The Company shall have received a certificate of the President of Newco in substantially the form attached as Annex L hereto. (g) Those certain executives and employees of the Company referenced on Schedule 6.01(e)(1) hereto shall each have entered into an Employment Agreement with the Surviving Corporation substantially in the form attached hereto as Annex E and upon such additional terms for each executive or employee as set forth on Schedule 6.01(e)(2), and those certain Shareholders of the Company referenced on Schedule 6.01(e)(3) shall each have entered into a Noncompetition, Nondisclosure and Nonsolicitation Agreement with the Surviving Corporation substantially in the form attached hereto as Annex F. (h) No act, event or condition shall have ccurred after the date hereof which the Company determines has had or could reasonably be expected to have a material adverse effect on the business, financial condition, properties, profitability, prospects or operations of Buyer. (i) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all of its obligations to be performed by it at certificates, opinions, agreements, instruments, releases and documents referenced herein or prior incident to the Effective Time under the Subordinated Debt Termination Agreement transactions contemplated hereby shall be in form and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent substance reasonably satisfactory to the relevant parties thereto pursuant to the terms thereofCompany and their counsel.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger shall be further Closing is subject to the satisfaction satisfaction, or the waiver at or prior to the Effective Time Company’s discretion, of all of the following further conditions: (a) The Purchaser Parties shall have duly performed all of their obligations hereunder required to be performed by them at or prior to the Closing Date in all material respects (disregarding all references to “material respects” that may already be contained in the applicable covenants). (i) All of the representations and warranties of Parent and Merger Sub set forth the Purchaser Parties contained in Article VI in this Agreement (other than Sections 6.5 (Finders’ Fees) and 6.7 (Capitalization)), disregarding all qualifications and exceptions contained herein relating to materiality or Purchaser Parties Material Adverse Effect, shall be true and correct in all material respects, in each case at and as of the date of this Agreement and as of the Effective Time as though made on Closing Date (except that if the representation and as of such date (unless any such representation or warranty is made only warranties that speak as of a specific date prior to the Closing Date, such representations and warranties need only to be true and correct as of such earlier date) other than where the failure of such representations and warranties to be so true and correct taken in the aggregate would not be reasonably expected to have a Purchaser Parties Material Adverse Effect, and (ii) each of the representations and warranties in which event such representation Sections 6.5 (Finders’ Fees) and warranty 6.7 (Capitalization) shall be true and correct in all material respects as of the date hereof and as of the Closing Date (except that if the representation and warranties that speak as of a specific date prior to the Closing Date, such representations and warranties need only to be true and correct as of such specified earlier date); (b) each of Parent and Merger Sub shall have performed , except for inaccuracies in all material respects the obligations, and complied aggregate that are de minimis in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time;effect. (c) the There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Purchaser Parties Material Adverse Effect which is continuing and uncured. (d) The Company shall have received the opinion a certificate signed by an authorized officer of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel Purchaser Parties to the Companyeffect set forth in clauses (a) through (c) of this Section 10.3. (e) From the date hereof until the Closing, dated the Purchaser Parties shall have been in material compliance with the reporting requirements under the Securities Act and the Exchange Act applicable to the Purchaser Parties. (f) Purchaser shall remain listed on Nasdaq and the additional listing application for the Closing Payment Shares shall have been approved by Nasdaq. As of the Closing Date, Purchaser shall not have received any written notice from Nasdaq that it has failed, or would reasonably be expected to fail to meet the effect that the Merger will be treated for United States federal income tax purposes Nasdaq listing requirements as a reorganization within the meaning of Section 368(a) of the Code. In rendering Closing Date for any reason, where such opinion, counsel to notice has not been subsequently withdrawn by Nasdaq or the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been underlying failure appropriately remedied or satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Buyer shall have filed with the NASDAQ National Market, or such other market on which the Buyer Common Stock is then listed or traded, a Notification for the Listing of Additional Shares or its equivalent; (b) the Buyer shall have effected all of the registrations, filings and notices referred to in Section 4.2 which are required on the part of the Buyer, except for any which if not obtained or effected would not have a Buyer Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in the first sentence of Section 3.1 and in Section 3.3 and any representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time Closing as though made on and as of the Closing, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (bd) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (ce) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Buyer shall have delivered to the Company the Buyer Certificate; and (g) the Company shall have received such other certificates and instruments (including certificates of good standing of the opinion Buyer and the Transitory Subsidiary in their jurisdiction of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPorganization, counsel certified charter documents, certificates as to the Company, dated incumbency of officers and the Closing Date, to adoption of authorizing resolutions) as it shall reasonably request in connection with the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction of the following additional conditions, unless any such condition is waived, in writing, by the Company: (a) this Agreement and the Merger shall have been approved and adopted by (i) the respective boards of directors of PubCo and Merger Sub and (ii) PubCo, the sole shareholder of Merger Sub, in accordance with the laws of the state of its incorporation; (b) PubCo shall have executed an delivered the Employment Agreements in the forms attached hereto as Exhibits C-1, C-2, and C-3; (c) the Voting Agreement in the form attached hereto as Exhibit E shall have been executed and delivered to the Company by PubCo and each of Xxxxxx X. Xxxx, Xxxxxxx X. Xxxx, Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxx, Sr., and Xxxxxxx Xxxx, Jr.; (d) the Registration Rights Agreement in the form attached hereto as Exhibit H shall have been executed and delivered to the Company by PubCo; (e) PubCo and Merger Sub shall have obtained all of the waivers, Permits, Consents, approvals or waiver at other authorizations, and effected all of the registrations, filings and notices (including, but not limited to any filings that are required pursuant to applicable federal and state securities laws), except for any which if not obtained or effected would not have a Material Adverse Effect on PubCo or Merger Sub or on the ability of the Parties to consummate the transactions contemplated by this Agreement; (f) each of PubCo and Merger Sub shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time of the following conditions:Time; (ag) the representations and warranties of Parent PubCo and Merger Sub set forth in this Agreement Article IV qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case as of the date of this Agreement hereof and as of the Effective Time as though Closing Date, except for representations and warranties made on and as of such date (unless any such representation or warranty is made only as of a specific specified date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (ch) the Company shall have received a recent Certificate of Good Standing from the opinion Secretary of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) State of the Code. In rendering such opinion, counsel to State of Washington regarding PubCo and a recent Certificate of Good Standing from the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Secretary of State of California regarding Merger Sub and Parent that counsel to the Company reasonably deems relevantSub; (di) the Company shall have received certificates from the Secretary of Merger Sub a certificate (i) certifying the articles of incorporation of Merger Sub, (ii) certifying the bylaws of Merger Sub, (iii) certifying the resolutions of the Board of Directors and the sole shareholder of Merger Sub approving this Agreement and the Merger, and (iv) attesting to the incumbency of the officers of Merger Sub; (j) the Company shall have received from the Secretary of PubCo a certificate (i) certifying the articles of incorporation of PubCo, (ii) certifying the bylaws of PubCo, (iii) certifying the resolutions of the Board of Directors of PubCo approving this Agreement and the Merger, and (iv) attesting to the incumbency of the officers of PubCo; (k) the Company shall have received from the President of PubCo and the President of Merger Sub a certificate certifying as to the matters set forth in Section 5.3(f) and Section 5.3(g); (l) the Company shall have received an executive officer of each of Parent opinion from counsel for PubCo and Merger Sub, certifying that reasonably acceptable to the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; andCompany; (em) Parent PubCo and Merger Sub shall have executed and delivered to the Company a tax certificate in substantially the form attached hereto as Exhibit F (the "PubCo and Merger Sub Tax Certificate"); (n) PubCo shall have entered into and performed all of its obligations to be performed by it at or prior to under the Note Purchase Agreement; (o) the Merger shall qualify as a "plan of reorganization" within the meaning of Section 368 of the Code; (p) PubCo and Merger Sub shall have taken all necessary action so that, effective as of the Effective Time without any further action by PubCo, Merger Sub or any other party, the authorized number of directors of each of PubCo and Merger Sub shall be seven and the directors of PubCo and the Surviving Corporation shall be the individuals set forth on Exhibit A attached hereto, and the officers of PubCo and the Surviving Corporation shall include the individuals set forth on Exhibit B hereto for such offices set forth in Exhibit B, and the individuals formerly holding such offices shall have resigned; (q) no proceeding in which PubCo or Merger Sub shall be a debtor, defendant or party seeking an Order for its own relief or reorganization shall have been brought or be pending by or against PubCo or Merger Sub under the Subordinated Debt Termination Agreement any United States or state bankruptcy or insolvency law; (r) Xxxx X. Xxxxxx shall have granted a three-year irrevocable proxy, in form and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent substance reasonably acceptable to counsel to the relevant parties thereto pursuant Company, to direct the voting with respect to 1,667 shares of PubCo Series C Preferred Stock held by Mr. Lyndon, to each of Xxxxxx X. Xxxx, Xxxxxxx X. Xxxx, Xxxxx Xxxxx, Xxxxxxx Xxxx, Sr., and Xxxxxxx Xxxx, Jr.; (s) the articles of incorporation of PubCo, as amended, shall have been amended to increase the authorized number of shares of PubCo Common Stock to 3,500,000,000 and the Certificate of the Designations, Powers, Preferences and Rights of the Series C Preferred Stock (the “Series C Designation”) shall have been amended to provide that all such shares shall, automatically and without any further action by any shareholder of PubCo, be redeemed by PubCo, at par value, on the third anniversary of the Closing, and that any further amendment to the terms thereofSeries C Designation shall require the vote of seventy-five percent (75%) of the voting power of the issued and outstanding Series C Preferred Stock (whether such voting power exists by ownership, proxy, or otherwise), all to the reasonable satisfaction of counsel to the Company. (t) since the date of this Agreement there shall not have been any event, change, effect or development that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect on PubCo or Merger Sub; and (u) all actions to be taken by PubCo and Merger Sub in connection with the consummation of the transactions contemplated hereby, and all certificates, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Company.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction (or waiver at or prior to by the Effective Time Company) of the following additional conditions: (a) Parent shall have obtained at its own expense all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices which are required on the part of Parent or Merger Sub to consummate the series of transactions contemplated by this Agreement and to otherwise comply with all applicable laws and regulations in connection with the consummation of the series of transactions contemplated by this Agreement; (b) the representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and respects as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of Closing except to the extent they pertain to a specific different date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date); (bc) each of Parent and Merger Sub shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevantClosing; (d) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the Company transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth be in Sections 7.3(a) and Section 7.3(b) have been satisfied; andeffect; (e) Parent shall have performed all of its obligations to be performed by it at or prior delivered to the Effective Time under Company the Subordinated Debt Termination Agreement Parent Certificate; and (f) the Company shall have received such other certificates and Tax Receivable Termination Agreementinstruments (including certificates of good standing of Parent and Merger Sub in their respective jurisdiction of organization, including the payment of all amounts due by Parent certified charter documents, certificates as to the relevant parties thereto pursuant to incumbency of officers and the terms thereofadoption of authorizing resolutions) as it shall reasonably request in connection with the Closing.

Conditions to Obligations of the Company. The obligation All of the obligations of the Company to effect consummate the Merger shall be further transactions contemplated by this Agreement are subject to the satisfaction or waiver at or prior to the Effective Time Closing of each of the following conditionsconditions precedent, any one or more of which may be waived by the Company: (a) 6.2.1 Each of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Purchaser contained herein shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on and as of such specified date);. (b) each of Parent and Merger Sub 6.2.2 The Purchaser shall have performed in all material respects the obligations, and complied in all material respects with all of the agreements agreements, covenants and covenants, obligations required under this Agreement to be performed by or complied with by it under prior to or at the Closing. 6.2.3 The Purchaser shall have delivered to the Company a certificate, executed by a duly authorized officer of the Purchaser in his capacity as such, certifying in such detail as the Company may reasonably request that the conditions specified in Sections 6.2.1 and 6.2.2 have been fulfilled. 6.2.4 All filings that are required to have been made by the Purchaser with any Authority in order to carry out the transactions contemplated by this Agreement at shall have been made, and all authorizations, consents and approvals from all Authorities required to carry out the transactions contemplated by this Agreement shall have been received. 6.2.5 There shall be in force no claim, proceeding, action, order or prior decree by or before any court or Authority of competent jurisdiction restraining, enjoining, prohibiting, invalidating or otherwise preventing (or seeking to prevent) the consummation of the transactions contemplated hereby, excluding any of same brought by the Company or its Affiliates. 6.2.6 No proceeding in which the Purchaser shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against such Person under any United States or state bankruptcy or insolvency Law. 6.2.7 The Company shall have received (a) a certificate of the Secretary or an Assistant Secretary of the Purchaser as to the Effective Time;incumbency and signatures of the officers of the Purchaser executing this Agreement, and (b) a certificate issued by the Secretary of State of the state of incorporation of the Purchaser, as of a date reasonably acceptable to the Company, as to the good standing of the Purchaser in such state. (c) the 6.2.8 The Company shall have received the opinion Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to Purchaser's Counsel. 6.2.9 The Purchaser shall have entered into the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) Employment Agreements with Joel A. Wolk and Gail Wolk in form and substance reasonably acceptable xx xxxx xxxsons. 6.2.10 The payment of the Code. In rendering such opinionShareholder Loan, counsel the Distribution and the Merrill Lynch Debt, as well as the release of the Company Shareholder'x xxxxxnxx xxd collateral, pursuant to Section 2.5 shall have occurred. 6.2.11 The Purchaser shall have entered into the Company Shareholder Agreement. 6.2.12 The Purchaser shall have delivered to the Company shall be entitled to rely upon customary representations a certificate of the Secretary of the Purchaser in his capacity as such, certifying in such detail as the Company may reasonably request that the board of directors of the Purchaser and assumptions provided the shareholders of the Purchaser have approved the consummation by the Company, Merger Sub and Parent that counsel to Purchaser of the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereoftransactions contemplated hereby.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further transactions herein contemplated is subject to the satisfaction or waiver at or prior to before the Effective Time Closing of the following conditions: (a) the representations and warranties of the Parent and Merger Sub set forth contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement respects at and as of the Effective Time as though made on Closing Date, except to the extent such representations and as of such warranties expressly relate to an earlier date (unless any such representation or warranty is made only as of a specific date, in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified earlier date) (in each case, without taking into account any qualification as to materiality, Material Adverse Change or Material Adverse Effect contained in such representations and warranties), and the Company shall have received a certificate to the foregoing effect dated the Closing Date signed by the Chief Executive Officer of the Parent; (b) each of the Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements all of their covenants and covenants, required obligations contained in this Agreement to be performed by or complied with by it under this Agreement them at or prior to the Effective Time, and the Company shall have received a certificate to the foregoing effect dated the Closing Date signed by the Chief Executive Officer of the Parent; (c) all consents or waivers identified in Schedule 4.09 shall have been obtained, and complete and correct copies of all such consents and waivers shall have been delivered to the Company; (d) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable injunction, judgment, order, ruling or decree would (i) prevent consummation of any of the transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation; (e) the Company shall have completed its due diligence review regarding the Parent and its Subsidiaries and their business, operations, assets, liabilities, prospects and other matters as the Company deems relevant, and the Company shall be satisfied, in its sole discretion, with the results of such review; (f) the Parent and Merger Sub shall have delivered the Schedules required to have been delivered by them pursuant to Section 7.07 of this Agreement, and such Schedules shall be satisfactory to the Company in its sole discretion; (g) each of the Parent and Merger Sub shall have delivered to the Company a secretary’s certificate dated as of the Closing Date as to (i) its certificate or articles of incorporation, (ii) its bylaws and (iii) the duly adopted resolutions of its Board of Directors relating the Merger and the other transactions contemplated herein; (h) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyParent and Merger Sub an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (di) each of the agreements with Affiliates listed on Schedule 8.01(i) shall have been terminated without the incurrence of any liability by the Parent or any of its Subsidiaries; (j) certain directors and officers of the Parent and each of its Subsidiaries shall have resigned, and the designees of the Company shall have received certificates been appointed as directors and officers of an executive officer of each of the Parent and Merger Sub, certifying that its Subsidiaries in accordance with Section 7.04; (k) the conditions set forth in Sections 7.3(a) and Section 7.3(b) 13% Secured Convertible Note of the Parent shall have been satisfiedamended in accordance with Section 7.06, upon terms reasonable acceptable to the Company; and (el) the Parent Common Stock shall have performed all of its obligations continued to be performed by it at or prior to quoted on the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofNASD Over-the-Counter Bulletin Board.

Conditions to Obligations of the Company. The obligation obligations of the ---------------------------------------- Company to effect the Merger shall will be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part to the extent permitted by Applicable Law: (a) VIALOG shall have furnished the representations Company and warranties the Principal Stockholder with the favorable opinion dated the Financing Closing Date of Parent Xxxxxx, X'Xxxxxxx, XxXxxxxx & Xxxxxx, llp, counsel to VIALOG and VIALOG Merger Sub set forth Subsidiary, which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of VIALOG and VIALOG Merger Subsidiary and public officials as are reasonable and customary to opinions delivered in the type of business transactions covered by this Agreement, addressing the following: (i) Due organization, valid existence and good standing of VIALOG and VIALOG Merger Subsidiary, (ii) Due authorization and valid execution and delivery by, and enforceability against, VIALOG and VIALOG Merger Subsidiary of the Agreement except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification provisions, (iii) Due authorization, valid issuance, full payment and non- assessability of and absence of preemptive rights with respect to the shares of VIALOG Stock to be received by the Stockholders, (iv) The execution and delivery of the Agreement by VIALOG and VIALOG Merger Subsidiary and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger by them do not, and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by them will not, (A) conflict with or violate the Organizational Documents of VIALOG or VIALOG Merger Subsidiary, (B) conflict with or violate any Applicable Law, or (C) to counsel's knowledge, constitute a default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation of a Lien on any property or assets of VIALOG or VIALOG Merger Subsidiary pursuant to, any Material Agreement to which either is a party or by which either or any property or asset of either is bound or affected, (v) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable, and filings of certificates of merger) are required for the execution and delivery of the Agreement by VIALOG and VIALOG Merger Subsidiary and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Merger and the consummation of the Merger by them, and (vi) The required filings with the Delaware Secretary of State and the Connecticut Secretary of State shall have been made, and a Certificate of Merger shall have been issued by the Connecticut Secretary of State for the Merger. (b) Each of VIALOG and VIALOG Merger Subsidiary shall have complied in all material respects with its agreements contained in this Agreement, and the certificates to be furnished to the Company pursuant to this Section shall be true, correct and complete. All Collateral Documents shall be reasonably satisfactory in form, scope and substance to the Company and its counsel, and the Company and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers, (c) The representations, warranties, covenants and agreements of each of VIALOG and VIALOG Merger Subsidiary contained in this Agreement or otherwise made in writing by it or on its behalf pursuant to this Agreement or otherwise made in connection with the Merger and the Transactions shall be true and correct in all material respects, in each case as of date of this Agreement respects at and as of the Effective Time Financing Closing Date with the same force and effect as though made on and as of such date (unless any such representation or warranty is made only except those which speak as of a specific date, in certain date which event such representation and warranty shall continue to be true and correct in all material respects as of such specified date); (b) date and on the Financing Closing Date; each and all of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required conditions to be performed or satisfied by or complied with by it each of VIALOG and VIALOG Merger Subsidiary under this Agreement at or prior to the Effective Time; (c) Financing Closing Date shall have been duly performed or satisfied in all material respects; and each of VIALOG and VIALOG Merger Subsidiary shall have furnished the Company with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as the Company shall have received reasonably requested, (d) If executed and delivered to VIALOG by the opinion Merger Closing, the employment agreements contemplated by Section 7.2(s) and for those persons listed on Schedule 7.2(t) (or Section 7.2(t) of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPthe Disclosure Schedule, counsel as the case may be) shall have been executed by the Surviving Corporation and delivered by VIALOG to the Companyindicated person, (e) The filing and waiting period requirements (if applicable) under the HSR Act relating to the consummation of the Merger and the Participating Mergers shall have been complied with, (f) VIALOG shall have obtained the insurance set forth in Section 6.7(c), (g) No Legal Action or other Claim shall be pending or threatened at any time prior to or on the Financing Closing Date before or by any Authority or by any other Person seeking to restrain or prohibit, dated or damages or other relief in connection with, the Closing Dateexecution and delivery of this Agreement or the consummation of the Merger and the Transactions or which might in the reasonable judgment of the Company have any Adverse Effect on VIALOG and its Subsidiaries or the Company and its Subsidiaries taken as a whole or, assuming consummation of the Merger and the Participating Agreements, VIALOG and its Subsidiaries taken as a whole, (h) The Company shall have received a letter from the Accountants to the effect that the Merger will be treated and the Transactions qualify as a transaction to which Section 368 of the Code applies for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinionpurposes, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;and (di) The by-laws of VIALOG shall have been amended to remove the right of first refusal contained therein and the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying certification to its reasonable satisfaction that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations VIALOG Stock to be performed by it at issued in the Merger will not be subject to any transfer restrictions or prior to the Effective Time purchase options under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment VIALOG's Certificate of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofIncorporation or by-laws.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in the first sentence of Section 3.1 and in Section 3.2 and any representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time Closing as though made on and as of such date (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 in all material respects as of such specified date)the Closing; (b) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (c) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (d) the Buyer shall have delivered to the Company the Buyer Certificate; (e) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyBuyer and the Transitory Subsidiary an opinion in substantially the form attached hereto as Exhibit B, addressed to the Company and dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;; and (df) the Company shall have received such other certificates and instruments (including certificates of an executive officer good standing of each the Buyer and the Transitory Subsidiary in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The Company’s obligation of to consummate the Company to effect the Merger shall be further Transaction is subject to the satisfaction or written waiver at or prior to the Effective Time (where permissible) of the following conditions: (a) all of the representations and warranties of Parent GTY, Holdings and Merger Sub set forth contained in Article 3 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein) in all material respects, in each case as of date of this Agreement and respects as of the Effective Time Closing Date, as though made on and as of such date the Closing Date (unless any such representation or warranty is except to the extent expressly made only as of a specific an earlier date, in which event case of as such representation and warranty shall be true and correct in all material respects as of such specified earlier date); (b) each of Parent GTY, Holdings and Merger Sub shall have performed and complied with, in all material respects the obligationsrespects, all of its covenants and complied agreements in all material respects with the agreements and covenants, required this Agreement to be performed by or complied with by it under this Agreement at or prior to or at the Effective TimeClosing; (c) GTY and Holdings shall have delivered to the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Companya certificate, dated as of the Closing Date, to the effect certifying (i) that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) each of the Code. In rendering such opinionconditions specified above in Section 6.3(a), counsel to (b) and (h) is satisfied; (ii) the Company shall be entitled to rely upon customary representations Organizational Documents of each GTY Party, (iii) the authorizing resolutions of each GTY Party, and assumptions provided by (iv) the Company, Merger Sub incumbency and Parent that counsel to signatures of the Company reasonably deems relevantPersons signing this Agreement or any Ancillary Agreement on behalf of each GTY Party; (d) GTY and Holdings, as applicable shall have issued and delivered the Merger Shares and Cash Consideration to the Exchange Agent; (e) GTY shall have delivered to the Company the Escrow Agreement executed by GTY, Holdings and the Escrow Agent; (f) the Merger Shares and the Post-Closing Earnout Shares shall have received certificates been approved for listing on the Nasdaq, subject to an official notice of an executive officer issuance; (g) Holdings or GTY shall have wired or caused to be wired $15,000,000 in immediately available funds to the account of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedCompany to be used as operating capital; and (eh) Parent there shall not have performed all of its obligations been a Material Adverse Effect with respect to GTY or Holdings, which shall not include any GTY Stock Redemption. All such agreements, documents and other items shall be performed by it at or prior in form and substance reasonably satisfactory to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofCompany.

Conditions to Obligations of the Company. The obligation of the Company to effect the Merger shall be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law: (a) American shall have delivered or cause to be delivered to the representations Company all of the Collateral Documents required to be delivered by American to the Company at or prior to the Closing pursuant to the terms of this Agreement; such Collateral Documents shall be reasonably satisfactory in form, scope and warranties substance to the Company and its counsel, and the Company and its counsel shall have received all information and copies of Parent and Merger Sub all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers; (b) American shall have furnished the Company with favorable opinions, dated the Closing Date of Xxxxxxxx & Worcester LLP, counsel for American, with respect to the matters set forth in this Agreement shall be true Sections 4.1(a), (b) and correct in all material respects(c) (other than as to Private Authorizations and as to American's Contractual Obligations, in each case as of limited to such counsel's knowledge) and with respect to such other matters arising after the date of this Agreement and incident to the Merger, as of the Effective Time as though made on and as of such date (unless Company or its counsel may reasonably request or which may be reasonably requested by any such representation bank or warranty is financial institution or their respective counsel; (c) The representations, warranties, covenants and agreements of American contained in this Agreement or otherwise made only as of a specific date, in which event such representation and warranty writing by it or on its behalf pursuant hereto or otherwise made in connection with the Merger shall be true and correct in all material respects at and as of the Closing Date with the same force and effect as though made on and as of such specified date, except those which speak as of a certain date which shall continue to be true and correct as of such date on the Closing Date (including without limitation giving effect to any later obtained knowledge, information or belief of American or the Company); (b) ; each and all of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required conditions to be performed or satisfied by or complied with by it under this Agreement American hereunder at or prior to the Effective Time; (c) Closing Date shall have been duly performed or satisfied in all material respects; and American shall have furnished the Company with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as the Company or its counsel shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;requested; and (d) the Company American shall have received certificates of an executive officer of each of Parent executed and Merger Sub, certifying that delivered the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedRegistration Rights Agreement; and (e) Parent American shall have performed all paid, or made arrangements to pay on the Closing Date, the outstanding principal and interest due under the Note comprising part of its obligations the Financing Documents, up to be performed by it at or prior an amount not to exceed $3,050,000 plus accrued interest thereon through the Closing Date to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereoflender thereunder.

Conditions to Obligations of the Company. The obligation obligations of the ---------------------------------------- Company and the Principal Stockholder to effect the Merger shall Asset Purchase will be further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part to the extent permitted by Applicable Law: (a) VIALOG shall have furnished the representations Company and warranties the Principal Stockholder with the favorable opinion dated the Financing Closing Date of Parent Xxxxxx, X'Xxxxxxx, XxXxxxxx & Xxxxxx, llp, counsel to VIALOG and Merger Sub set forth Buyer, which may contain limitations and qualifications as to scope and law and rely on certifications as to facts of officers of VIALOG and Buyer and public officials as are reasonable and customary to opinions delivered in the type of business transactions covering this Agreement, addressing the following: (i) Due organization, valid existence and good standing of VIALOG and Buyer, (ii) Due authorization and valid execution and delivery by, and enforceability against VIALOG and Buyer of the Agreement except (A) as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization, arrangement, voidable preference, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors and as the same may be subject to the effect of general principles of equity and (B) that no opinion need be expressed as to the enforceability of indemnification provisions, (iii) The execution and delivery of the Agreement by VIALOG and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Asset Purchase by it does not, and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Asset Purchase and the consummation of the Asset Purchase by it will not, (A) conflict with or violate the Organizational Documents of VIALOG, (B) conflict with or violate any Applicable Law, or (C) to counsel's knowledge, constitute a default under, or give to others any right of termination, amendment, acceleration, increased payments or cancellation of, or result in the creation of a Lien on any property or assets of VIALOG pursuant to, any Material Agreement to which it is a party or by which it or any property or asset of it is bound or affected, (iv) No consents from or filings with any Governmental Authority (other than filings under the HSR Act, if applicable are required for the execution and delivery of the Agreement by VIALOG and the performance of the Agreement and all Collateral Documents executed or required to be executed pursuant thereto or to consummate the Asset Purchase and the consummation of the Asset Purchase by them, and (v) The required filings with the Delaware Secretary of State to change the Certificate of Incorporation as provided in Section 1.7 shall have been made. (b) Each of VIALOG and Buyer shall have complied in all material respects with its agreements contained in this Agreement, and the certificates to be furnished to the Company pursuant to this Section shall be true, correct and complete. All Collateral Documents shall be reasonably satisfactory in form, scope and substance to the Company and its counsel, and the Company and its counsel shall have received all information and copies of all documents, including records of corporate proceedings, which they may reasonably request in connection therewith, such documents where appropriate to be certified by proper corporate officers, (c) The representations, warranties, covenants and agreements of each of VIALOG and Buyer contained in this Agreement or otherwise made in writing by it or on its behalf pursuant to this Agreement or otherwise made in connection with the Asset Purchase and the Transactions shall be true and correct in all material respects, in each case as of date of this Agreement respects at and as of the Effective Time Financing Closing Date with the same force and effect as though made on and as of such date (unless any such representation or warranty is made only except those which speak as of a specific date, in certain date which event such representation and warranty shall continue to be true and correct in all material respects as of such specified date); (b) date and on the Financing Closing Date; each and all of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required conditions to be performed or satisfied by or complied with by it each of VIALOG and Buyer under this Agreement at or prior to the Effective Time; (c) Financing Closing Date shall have been duly performed or satisfied in all material respects; and each of VIALOG and Buyer shall have furnished the Company with such certificates and other documents evidencing the truth of such representations, warranties, covenants and agreements and the performance of such agreements or conditions as the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;requested, (d) If executed and delivered to VIALOG by the Company Asset Purchase Closing, the employment agreements contemplated by Section 7.2(s) and for those persons listed on Schedule 7.2(s) (or Section 7.2(s) of the Disclosure Schedule, as the case may be) shall have received certificates been executed and delivered by the Buyer at VIALOG's direction to the indicated person, (e) The filing and waiting period requirements (if applicable) under the HSR Act relating to the consummation of an executive officer of each of Parent the Asset Purchase and Merger Sub, certifying that the conditions Participating Mergers shall have been complied with, (f) VIALOG shall have obtained the insurance set forth in Sections 7.3(a6.7(c), (g) The Company shall have obtained all third party consents needed for the Buyer to assume and Section 7.3(bcontinue those Material Agreements being assumed by Buyer, (h) The Buyer and the Principal Stockholder shall have been satisfied; entered into an agreement whereby the Principal Stockholder and its Subsidiaries may, for a period of five (5) years commencing on the Effective Time, purchase from Buyer minutes of long distance usage at Buyer's lowest cost plus $.01 per minute, and (ei) Parent No Legal Action or other Claim shall have performed all of its obligations to be performed by it pending or threatened at or any time prior to or on the Effective Time under Financing Closing Date before or by any Authority or by any other Person seeking to restrain or prohibit, or damages or other relief in connection with, the Subordinated Debt Termination execution and delivery of this Agreement or the consummation of the Asset Purchase and Tax Receivable Termination Agreementthe Transactions or which might in the reasonable judgment of the Company have any Adverse Effect on VIALOG and its Subsidiaries or the Company and its Subsidiaries taken as a whole or, including assuming consummation of the payment of all amounts due by Parent to Asset Purchase and the relevant parties thereto pursuant to the terms thereofParticipating Agreements, VIALOG and its Subsidiaries taken as a whole.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Buyer shall have effected all of the registrations, filings and notices referred to in Section 4.2 which are required on the part of the Buyer, except for any which if not obtained or effected would not have a Buyer Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (b) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in the first sentence of Section 3.1 and Section 3.3 and any representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality, "Buyer Material Adverse Effect" or words of similar effect, shall be true and correct, and the representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are not so qualified (other than those set forth in Section 3.1 and Section 3.3) shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time Closing Date as though made on and as of the Closing Date, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (bc) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (d) the Buyer shall have delivered to the Company a certificate (the "Buyer Certificate") to the effect that each of the conditions specified in clauses (a) through (c) of this Section 5.3 is satisfied in all respects; (e) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyBuyer and the Transitory Subsidiary an opinion in the form as set forth in EXHIBIT F attached hereto, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel addressed to the Company shall be entitled to rely upon customary representations and assumptions provided by dated as of the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;Closing; and (df) the Company shall have received certificates a certificate from the Secretary of an executive officer Buyer, dated as of each of Parent and Merger Subthe Closing Date, certifying that as to its respective certificate of incorporation, bylaws, the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all incumbency of its obligations to be performed respective officers and directors, and the resolutions adopted by it at or prior to the Effective Time under the Subordinated Debt Termination its respective board of directors and stockholders, if applicable, approving this Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofMerger.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Buyer shall have effected all of the registrations, filings and notices referred to in Section 4.2 which are required on the part of the Buyer; (b) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in the first sentence of Section 3.1 and in Section 3.3 and any representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time Closing as though made on and as of the Closing, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (bc) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (cd) no Legal Proceeding shall be existing, pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (e) the Buyer shall have delivered to the Company the Buyer Certificate; (f) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyBuyer and the Transitory Subsidiary an opinion in substantially the form attached hereto as Exhibit I, addressed to the Company and dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;; and (dg) the Company shall have received such other certificates and instruments (including certificates of an executive officer good standing of each the Buyer and the Transitory Subsidiary in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) a. the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in this Agreement Article III shall be true and correct in all material respects, in each case as of when made on the date of this Agreement hereof and shall be true and correct as of the Effective Time as though if made on and as of such date (unless any such representation or warranty is the Effective Time, except for representations and warranties made only as of a specific date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date); (b) b. each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; c. each of the Buyer and the Transitory Subsidiary shall have delivered to the Company a certificate (cwithout qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified in clauses (a) and (b) of this Section 5.3 is satisfied in all respects; d. the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx from Hale and Dorr LLP, counsel counsex xx the Xxxxr and the Transitory Subsidiary, an opinion in the form attached hereto as Exhibit F, addressed to the Company and dated as of the Closing Date; e. the Company shall have received an opinion from Mayer, Brown & Platt, in x xxxm xxxxxnabxx xxtisfactory to the Company, dated the Closing Date, based upon certain factual representations of the Company, the Stockholders and the Buyer reasonably requested by such counsel, to the effect that the Merger will be treated constitute a reorganization for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering Code and, except for cash received in lieu of fractional Merger Shares, no Stockholder who received Merger Shares in exchange for Company Shares in the Merger shall recognize taxable gain or loss upon such opinion, counsel exchange; f. the Buyer shall have entered into the Robert Shepro Employment Xxxxxxxxx; g. the Buyer shall have entered into the Linda Shepro Employment Axxxxxxxx; h. the Buyer and the Escrow Agent shall have entered into the Escrow Agreement; i. the Merger Shares shall have been authorized for listing on the Nasdaq National Market upon official notice of issuance; j. each of the Buyer and the Transitory Subsidiary shall have delivered to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel a certificate of its Secretary attesting to the Company reasonably deems relevant; (d) incumbency of such entity's officers, the Company shall have received certificates authenticity of an executive officer the resolutions authorizing the transactions contemplated by this Agreement, and the authenticity and continuing validity of each such entity's Certificate of Parent Incorporation and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedBy-laws; and (e) Parent shall have performed k. all of its obligations actions to be performed taken by it at or prior the Buyer and the Transitory Subsidiary in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofCompany.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in the first sentence of Section 3.1 and in Section 3.2 and any representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time Closing as though made on and as of the Closing, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (b) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (c) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (d) the Buyer shall have delivered to the Company the Buyer Certificate; (e) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyBuyer and the Transitory Subsidiary an opinion in substantially the form attached hereto as Exhibit B, addressed to the Company and dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;; and (df) the Company shall have received such other certificates and instruments (including certificates of an executive officer good standing of each the Buyer and the Transitory Subsidiary in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger contemplated by this Agreement shall be further subject to the satisfaction or waiver at or prior to the Effective Time by Xxxx of the following conditionsconditions precedent on and as of the Commencement Date: (a) Xxxx shall have duly executed the Company Inventory Sales Agreement in form and substance satisfactory to the Company; (b) Xxxx shall have duly executed the Existing Supplier/Offtaker Inventory Sales Agreement; (c) Xxxx shall have duly executed the Storage Facilities Agreement in form and in substance satisfactory to the Company; (d) Xxxx shall have duly executed the Marketing and Sales Agreement in form and in substance satisfactory to the Company; (e) Xxxx shall have duly executed the Agency Agreement in form and in substance satisfactory to the Company; (f) Xxxx shall have agreed to the form of the Step-Out Inventory Sales Agreement in form and in substance satisfactory to the Company; (g) Xxxx shall have duly executed the Fee Letter; (h) [Reserved]; (i) Xxxx shall have executed the Lien Documents to the extent its signature is required thereunder; (j) All representations and warranties of Parent and Merger Sub set forth Xxxx contained in this Agreement the Transaction Documents shall be true and correct in all material respects, in each case as of date of this Agreement on and as of the Effective Time as though made on and as of such date (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 in all material respects as of such specified date)Commencement Date; (bk) each of Parent and Merger Sub Xxxx shall have performed in complied with all material respects the obligations, covenants and complied in all material respects with the agreements and covenants, hereunder that it is required to be performed by comply with on or complied with by it under this Agreement at or prior to before the Effective TimeCommencement Date; (cl) the Company Xxxx shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel delivered to the Company shall such other certificates, documents and instruments as may be entitled reasonably necessary to rely upon customary representations and assumptions provided by consummate the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedtransactions contemplated herein; and (em) Parent Xxxx shall have performed all delivered satisfactory evidence of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereoffederal form 637 license.

Conditions to Obligations of the Company. The obligation of the Company to effect the Merger shall be further Transactions is subject to the satisfaction or waiver fulfillment at or prior to the Effective Time Closing Date of the following additional conditions: (a) Parent shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement which are required to be performed and complied with by Parent on or prior to the Closing Date; (b) the representations and warranties of Parent and Merger Sub which are set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Article VII shall be true and correct in all material respects as of the Effective Time as though made at and as of the Effective Time (except to the extent that any such specified representation or warranty speaks as of a particular date, in which case such representation and warranty need only be true and correct as of such date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (c) the Company shall have received a certificate from the opinion Chief Executive Officer or Chief Financial Officer of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the CompanyParent, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinionthat, counsel to the Company shall be entitled to rely upon customary representations best of such officer’s knowledge, the conditions set forth in Sections 9.03(a) and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant9.03(b) have been satisfied; (d) the Company Required Regulatory Approvals shall have received certificates of an executive officer of each of Parent been obtained and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; andbecome Final Regulatory Orders; (e) Parent shall have performed all of its obligations delivered to be performed by it CES at or prior to the Effective Time under Closing certificates of good standing with respect to Parent and Sub (dated as of a recent date prior to the Subordinated Debt Termination Closing Date but in no event more than 15 Business Days before the Closing Date), issued by the Secretary of State of New Mexico with respect to Parent, and issued by the Secretary of State of Delaware with respect to Sub; and (f) a copy, certified by an authorized officer of Parent, of resolutions of the directors of the Parent authorizing the execution and delivery of this Agreement and Tax Receivable Termination Agreementthe consummation of the Transactions, including together with a certificate by the payment Secretary or an Assistant Secretary of all amounts due by Parent as to the relevant parties thereto pursuant incumbency of those officers authorized to execute and deliver this Agreement and the terms thereofCertificate of Merger.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger shall be further and the other transactions contemplated by this Agreement are subject to the satisfaction or waiver at or prior to the Effective Time Closing Date of the following conditions, any or all of which may be waived in writing in the absolute discretion of the Company, in whole or in part: (a) Each of the representations and warranties of Parent and Merger Sub set forth the Tyler Companies contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall must be true and correct in all material respects as of such specified date);the Closing Date as though made on and as of the Closing Date. (b) each of Parent and Merger Sub shall The Tyler Companies must have performed in or complied with all material respects the obligations, and complied in all material respects with the agreements and covenants, covenants required by this Agreement to be performed by or complied with by it under this Agreement at them on or prior to the Effective Time;Closing Date. (c) the Company shall All contractual and governmental consents, approvals, and notifications must have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;been obtained or given. (d) Parent must have delivered to the Company shall have received certificates a closing certificate substantially in the form of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; andExhibit D. (e) Parent must have delivered to the Company a certificate of the secretary of the Parent substantially in the form of Exhibit E. (f) The Company shall have performed all received a fairness opinion of its obligations to be performed by it at the type customarily received in such transactions. (g) The Parent or prior the Merger Sub and James K. Hoofard, Jr. xxxxx xxxx xxxxxxd into an employment contract covering Mr. Hoofard's servxxxx xx xxx Parent and to the Effective Time under Merger Sub following the Subordinated Debt Termination Agreement and Tax Receivable Termination AgreementClosing, including the payment of all amounts due by Parent based upon terms substantially similar to that attached hereto as Exhibit C. (h) The Tyler Shares being delivered to the relevant parties thereto stockholders of the Company shall have been approved for listing on the NYSE, and shall, subject to certain limitations which may apply to affiliates of the Company pursuant to Rule 145 of the terms thereofSecurities Act of 1933, or the pooling of interest accounting rules, be freely tradable by the recipients of such shares upon receipt.

Conditions to Obligations of the Company. The Company’s obligation of to consummate the Company to effect the Merger shall be further Transaction is subject to the satisfaction or written waiver at or prior to the Effective Time of (where permissible) the following conditions: (a) all of the representations and warranties of Parent GTY and Merger Sub set forth contained in Article 3 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein) in all material respects, in each case as of date of this Agreement and respects as of the Effective Time Closing Date, as though made on and as of such date the Closing Date (unless any such representation or warranty is except to the extent expressly made only as of a specific an earlier date, in which event case of as such representation and warranty shall be true and correct in all material respects as of such specified earlier date); (b) each of Parent GTY and Merger Sub shall have performed and complied with, in all material respects the obligationsrespects, all of its covenants and complied agreements in all material respects with the agreements and covenants, required this Agreement to be performed by or complied with by it under this Agreement at or prior to or at the Effective TimeClosing; (c) the Company GTY shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel delivered to the CompanyeCivis Holders’ Representative a certificate, dated as of the Closing Date, to the effect certifying (i) that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) each of the Code. In rendering such opinionconditions specified above in Section 6.3(a), counsel to (b) and (c) is satisfied; (ii) the Company shall be entitled to rely upon customary representations Organizational Documents of each GTY Party, (iii) the authorizing resolutions of each GTY Party, and assumptions provided by (iv) the Company, Merger Sub incumbency and Parent that counsel to signatures of the Company reasonably deems relevantPersons signing this Agreement or any Ancillary Agreement on behalf of each GTY Party; (d) the Company GTY shall have received certificates of an executive officer of each of Parent issued and delivered the Merger Sub, certifying that Shares (less the conditions set forth in Sections 7.3(aEscrow Shares) and Section 7.3(bCash Consideration, less the Closing Option Amount, to the Exchange Agent; (e) GTY shall have been satisfieddeposited the Escrow Shares with the Escrow Agent; (f) GTY shall have deposited the Purchase Price Escrow Amount and the Cash Escrow Amount with the Escrow Agent; (g) GTY shall have delivered to eCivis Holders’ Representative the Escrow Agreement executed by GTY and the Escrow Agent; and (eh) Parent GTY shall have performed all of its obligations to be performed by it at or prior delivered to the Effective Time under applicable counterparties thereto duly executed copies of the Subordinated Debt Termination Agreement Employment Agreements. All such agreements, documents and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent other items shall be in form and substance reasonably satisfactory to the relevant parties thereto pursuant to the terms thereofeCivis Holder Representative.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger Distributions hereunder shall be further subject to the satisfaction or waiver at or prior to the Effective Time of each of the following conditions: (a) the representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as All of the Effective transactions contemplated by Article II hereof to occur prior to the Distribution Time as though made on and as of such date (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 in all material respects as of such specified date);have been consummated. (b) each of Parent and Merger Sub The Distribution Shares to be issued in the Distributions shall have performed in all material respects been approved for trading on the obligationsNASDAQ, and complied in all material respects with the agreements and covenants, required subject only to be performed by or complied with by it under this Agreement at or prior to the Effective Time;official notice of issuance. (c) All filings required to be made prior to the Distribution Time with, and all consents, approvals and authorizations required to be obtained prior to the Distribution Time from, any government or any court, arbitral tribunal, administrative agency or commission or other regulatory authority, agency or commission, governmental or otherwise, in connection with the consummation of the Preliminary Transactions, the Distributions and any other transaction contemplated hereby shall have been made or obtained, except where the failure to make or obtain the same would not, individually or in the aggregate, have a material adverse effect on the business, properties, results of operations or financial condition of the Company, the Distributed Companies or any of their respective Subsidiaries, or on the ability of any thereof to consummate the transactions contemplated hereby, or to perform its obligations under this Agreement or any of the Ancillary Agreements to which it is or will be a party. (d) Each of the Ancillary Agreements shall have been executed and delivered by each of the parties thereto and shall be in full force and effect in accordance with its terms. (e) Each of the registration statements on Forms S-1 under the Securities Act filed with the SEC by the Distributed Companies in connection with the Distributions shall have become effective under the Exchange Act, no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated by the SEC; and the Information Statements shall have been or shall be simultaneously mailed to holders of Distribution Shares in accordance with the rules, regulations and policies of the SEC. (f) No statute, rule or regulation or temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition shall be in effect that prohibits consummation of the Preliminary Transactions or the Distributions. (g) All conditions to the Tender Offer shall have been satisfied or waived by the Company, and the Tender Offer shall have been consummated prior to or on the Distribution Date. (h) The Company and each of the Distributed Companies shall have received the an opinion of Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxx & Xxxxxxxx LLPXxxxxxxxx, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States U.S. federal income tax purposes the Distributions will qualify as a reorganization within tax-free spin-offs under Section 355 of the meaning of Code and will not be taxable under Section 368(a355(e) of the Code. In rendering such opinion, such counsel to the Company shall be entitled to rely upon customary on certain assumptions and representations and assumptions provided by the Company, Merger Sub the Distributed Companies and Parent CDR-PC and certain other information, data, documentation and other materials that counsel to the Company reasonably Xxxxxx, Xxxxxx & Xxxxxxxxx deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofnecessary.

Conditions to Obligations of the Company. The obligation In addition to the conditions set forth in Section 5.3 and 6.1, the Company shall be obligated to perform the acts contemplated for performance by it under Article I only if each of the Company to effect the Merger shall be further subject to the satisfaction or waiver following conditions is satisfied at or prior to the Effective Time of Closing Date, unless any such condition is waived in writing by the following conditionsCompany: (a) the The representations and warranties of the Parent and Merger Sub Purchaser set forth in this Agreement Article 3 shall be true and correct in all material respects, in each case as of date of this Agreement the Closing Date with the same force and effect as though made again at and as of the Effective Time as though made on Closing Date, except for any representations and as of such date (unless any such representation or warranty is made warranties that address matters only as of a specific date, particular date specifically set forth in the particular representation or warranty which event such representation and warranty shall be remain true and correct in all material respects as of such specified particular date);. (b) each of The Parent and Merger Sub Purchaser shall have performed in all material respects the obligations, and complied in all material respects (without giving duplicative effect to any materiality qualification contained in the applicable obligation) with the all covenants and agreements and covenants, contained in this Agreement required to be performed by or complied with by it under this Agreement at them on or prior to before the Effective Time;Closing Date. (c) The Parent and Purchaser shall have deposited with the Exchange Agent the Deposit Amount in trust for the benefit of the holders of certificates. (d) The Parent and Purchaser shall have executed and delivered to the Company at and as of the Closing a certificate, duly executed by the Parent's and Purchaser's Presidents and Chief Financial Officers, in form and substance reasonably satisfactory to the Company and the Company's counsel, certifying that to such officers' knowledge, the conditions specified in (a), (b) and (c) have been satisfied. (e) As of the Effective Time, the Options set forth in Section 1.7 of the Company Disclosure Letter shall have been terminated to the Company's reasonable satisfaction, or the Purchaser shall have agreed to such continuation and any and all liabilities arising out of such Options. (f) Company shall have received the a fairness opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, from its financial advisor to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within per share consideration is fair to the meaning holders of Section 368(a) shares of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates common stock from a financial point of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofview.

Conditions to Obligations of the Company. The obligation of the Company ---------------------------------------- to effect consummate the Merger shall be further is subject to the satisfaction of or waiver at or prior to by the Effective Time Company of the following additional conditions: (a) the representations and warranties of the Parent and Merger Sub the Acquisition Subsidiary set forth in this Agreement Article III shall be true and correct in all material respects, respects when made on the date hereof and shall be true and correct in each case as of date of this Agreement and all material respects as of the Effective Time as though if made on and as of such date (unless any such representation or warranty is the Effective Time, except for representations and warranties made only as of a specific date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date)date and except if such inaccuracies individually or in the aggregate do not cause a Parent Material Adverse Effect; (b) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (c) each of the Parent and the Acquisition Subsidiary shall have delivered to the Company a certificate of its President and Chief Financial Officer to the effect that each of the conditions specified in clauses (b) and (c) of Section 5.1 and clauses (a), (b) and (d) of this Section 5.3 is satisfied in all respects; (d) the Parent and the Acquisition Subsidiary shall have obtained all material waivers, permits, consents, approvals or other authorizations necessary to be obtained by them to consummate the Merger and effected all material registrations, filings and notices, necessary to be effected by them to consummate the Merger; (e) no writ, order, decree or injunction of a court of competent jurisdiction or governmental entity shall have been entered against the Parent, the Acquisition Subsidiary or the Company which prohibits the consummation of the Merger; provided, however, that the Company shall have contested or cooperated with Parent or the Acquisition Subsidiary, as applicable, in contesting, the action suit or proceeding giving rise to such writ, order, decree or injunction and shall have used reasonable efforts to have the same dismissed; (f) if any action, suit or proceeding shall be pending or threatened before any governmental entity or authority which is reasonably likely to (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) materially and adversely affect or otherwise encumber the title of the Merger Shares to be issued to the pre-Merger stockholders of the Company upon consummation of the Merger; provided, however, that the Company shall automatically be deemed to have waived this requirement if the Parent agrees to provide the Company's pre-Merger officers, directors and controlling persons with full and fair indemnification with respect to such action, suit or proceeding in form and substance reasonably satisfactory to the Company; (g) the Company shall have received the opinion of from Brown, Xxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLPGesmer, United States counsel to the CompanyParent and the Acquisition Subsidiary, an opinion with respect to the matters set forth in Exhibit H attached hereto, addressed to --------- the Company and dated as of the Closing Date; (h) the Company shall have received from Loeff Xxxxxx Xxxxxxx, Belgian counsel to the Parent, an opinion with respect to the matters set forth in Exhibit I attached hereto, addressed to the Company and dated as of the Closing --------- Date; (i) the Company shall have received "comfort" letters from KPMG Goerdeler Bedrijfsrevisoren, independent certified public accountants for the Parent, dated the effective date of the Registration Statement and the Closing DateDate (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement in customary form; (j) the Company shall have received an opinion of Xxxxx, Rudnick, Freed & Gesmer, dated the Effective Time, to the effect that (i) the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) each of Parent, Subsidiary and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code; (iii) no gain or loss will be recognized by the Company, Parent or Subsidiary as a result of the conversion of Company Shares in Parent Common Stock, and (iv) no gain or loss will be recognized by a stockholder of the Company as a result of the Merger with respect to Company Common Stock converted solely into Parent Common stock. In rendering such opinion, counsel to the Company shall be entitled to Xxxxx, Xxxxxxx, Xxxxx & Gesmer may receive and rely upon customary representations contained in certificates of Parent, Subsidiary and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (ek) Parent the Average Market Value shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofgreater than $20 per share.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Buyer shall have effected all of the registrations, filings and notices referred to in Section 4.2 which are required on the part of the Buyer; (b) each of the representations and warranties of Parent the Buyer and Merger Sub set forth the Transitory Subsidiary contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date the Effective Time (unless any such representation or warranty is except to the extent expressly made only as of a specific an earlier date, in which event case as of such representation date), except (other than with respect to representations and warranty shall warranties set forth in Section 3.1, 3.2, 3.3, 3.10 and 3.11) where failure to be so true and correct would not have, individually or in the aggregate, a Buyer Material Adverse Effect; (c) each of the Buyer and the Transitory Subsidiary shall have performed or complied with in all material respects as of such specified date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (cd) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) have a Buyer Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (e) the Buyer shall have delivered to the Company a certificate (the "Buyer Certificate") to the effect that each of the conditions specified in clauses (a) through (d) (insofar as clause (d) relates to Legal Proceedings involving the Buyer) of this Section 5.3 is satisfied in all respects; (f) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyBuyer and the Transitory Subsidiary an opinion with respect to the matters set forth in EXHIBIT F attached hereto, addressed to the Company and dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;; and (dg) the Buyer shall have entered into employment agreements with Marc Xxxxx xxx Jeff Xxxxx, xx the forms attached hereto as EXHIBITS D-1 and D-2, respectively; and (h) the Company shall have received such other certificates and instruments (including without limitation certificates of an executive officer good standing of each the Buyer and the Transitory Subsidiary in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions, each of which may be waived in writing in the sole discretion of the Company: (a) the representations and warranties of Parent the Buyer and Merger Sub set forth the Transitory Subsidiary contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (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 in all material respects as of the date of this Agreement and shall each be true and correct in all material respects as of the Closing as if made on and as of the Closing, in each case other than (i) representations and warranties that contain materiality limitations, which shall be true and correct in all respects, and (ii) representations and warranties that by their express terms are made solely as of a specified earlier date, which shall be true and correct as of such specified earlier date); (b) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (c) the Company no Legal Proceeding shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPbe pending or threatened wherein an unfavorable judgment, counsel to the Companyorder, dated the Closing Datedecree, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(astipulation or injunction would (i) prevent consummation of the Code. In rendering transactions contemplated by this Agreement, (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation or (iii) have, individually or in the aggregate, a material adverse effect on the Buyer, and no such opinionjudgment, counsel to the Company order, decree, stipulation or injunction shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevantin effect; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that obtained the conditions set forth in Sections 7.3(aRequisite Stockholder Approval; (e) and Section 7.3(b) the Buyer shall have been satisfieddelivered to the Stockholders’ Representative the Buyer Certificate; and (ef) Parent the Stockholders’ Representative shall have performed all received such other certificates and instruments (including certificates of its obligations to be performed by it at or prior good standing of the Buyer and the Transitory Subsidiary in their jurisdiction of organization, certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Merger Shares shall have been authorized for listing on the Nasdaq National Market upon official notice of issuance; (b) the Buyer shall have effected all of the registrations, filings and notices referred to in Section 4.2 which are required on the part of the Buyer, except for any which if not obtained or effected would not have a Buyer Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in the first sentence of Section 3.1 and Section 3.3 and any representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are not so qualified (other than those set forth in Section 3.1 and Section 3.3) shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time as though made on and as of the Effective Time, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date or as of the date of this Agreement (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (bd) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (ce) the Buyer shall have delivered to the Company a certificate (the "Buyer Certificate") to the effect that each of the conditions specified in clauses (a) through (d) of this Section 5.3 is satisfied in all respects; (f) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyBuyer and the Transitory Subsidiary an opinion with respect to the matters set forth in Exhibit F attached hereto, addressed to the Company and dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;; and (dg) the Company shall have received such other certificates and instruments (including without limitation certificates of an executive officer good standing of each the Buyer and the Transitory Subsidiary in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction (or waiver at or prior to by the Effective Time Buyer) of the following additional conditions: (a) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in the first sentence of Section 3.1 and in Section 3.2 and any representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Buyer and the Transitory Subsidiary set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time Closing as though made on and as of the Closing, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (b) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (c) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (d) the Buyer shall have delivered to the Company the Buyer Certificate; (e) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyBuyer and the Transitory Subsidiary an opinion in substantially the form attached hereto as Exhibit B, addressed to the Company and dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;; and (df) the Company shall have received such other certificates and instruments (including certificates of an executive officer good standing of each the Buyer and the Transitory Subsidiary in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction (or waiver at or prior to by the Effective Time Company) of the following additional conditions: (a) the Buyer shall have effected all of the registrations, filings and notices referred to in Section 4.2 which are required on the part of the Buyer; (b) the representations and warranties of Parent the Buyer and Merger Sub set forth in this Agreement the Transitory Subsidiary shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time Closing as though made on and as of the Closing, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct as of such date) and except to the extent such representations and warranties are not true and correct as a result of any Buyer Permitted Adverse Effect; provided that the condition set forth in this Section 5.3(b) shall only be deemed not to have been satisfied if the failure of such representation(s) or warranty(ies) to be true and correct has a Buyer Material Adverse Effect; (c) each of the Buyer and the Transitory Subsidiary shall have performed or complied with in all material respects as of such specified date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the its agreements and covenants, other than pursuant to Section 10.1(b), required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (cd) the Buyer shall have delivered to the Company the Buyer Certificate; (e) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, from counsel to the CompanyBuyer and the Transitory Subsidiary an opinion in substantially the form attached hereto as Exhibit D, addressed to the Company and dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;; and (df) the Company shall have received such other certificates and instruments (including certificates of an executive officer good standing of each the Buyer and the Transitory Subsidiary in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger Transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver the Company’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) Each of the representations and warranties of Parent Harvest contained in Sections 5.01, 5.07, 5.09, 5.10, 5.11, 5.12, 5.17, 5.24 and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of 5.25 (the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty “Harvest Specified Representations”) shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date (except to the extent such specified representations and warranties expressly relate to an earlier date, in which case, they shall be true and correct on and as of such earlier date. Each of the representations and warranties of Harvest contained in this Agreement (other than the Harvest Specified Representations) shall be true and correct as of the 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, they shall be true and correct on and as of such earlier date);, except, in either case, where the failure of such representations and warranties to be so true and correct would not have a Harvest Material Adverse Effect. (b) each Each of Parent the representations and Merger Sub warranties of Newco contained in Article 7 shall be true and correct as of the 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, they shall be true and correct on and as of such earlier date). (c) Harvest shall have duly performed in all material respects the obligations, and complied in with all material respects with the agreements agreements, covenants and covenants, conditions required by this Agreement to be performed by or complied with by it under prior to or on the Closing Date. (d) Newco shall have duly performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date. (e) All Required Regulatory Approvals and all approvals, consents and waivers that are listed in Section 10.03(e) of the Harvest Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to the Company at or prior to the Effective Time;Closing, save and except for those approvals, consents or waivers which cannot be obtained due to a change in Law. (cf) Harvest and Newco, as applicable, shall have delivered to the Company and ParentCo each of the documents referred to in Section 2.10(d) and Section 2.10(e). (g) The Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Companya certificate, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as Date and signed by a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive duly authorized officer of Harvest, that each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(aSection 10.03(a) and Section 7.3(b10.03(c) have been satisfied; and. (eh) Parent The Company shall have performed all received a certificate, dated the Closing Date and signed by a duly authorized officer of its obligations to be performed by it at or prior to Newco, that each of the Effective Time under conditions set forth in Section 10.03(b) and Section 10.03(d) have been satisfied. (i) From the Subordinated Debt Termination Agreement and Tax Receivable Termination date of this Agreement, including there shall not have occurred any Harvest Material Adverse Effect, nor shall any event or events have occurred that, individually or in the payment aggregate, with or without the lapse of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereoftime, would result in a Harvest Material Adverse Effect.

Conditions to Obligations of the Company. The obligation of the Company to effect take the Merger shall actions to be further taken by it at the Closing is subject to the satisfaction of the following additional conditions, unless any such condition is waived, in writing, by the Company: (a) this Agreement and the Merger shall have been adopted and approved by WNDS, the sole stockholder of Merger Sub, at a meeting of stockholders in accordance with Section 211 of the DGCL or waiver at by their consent pursuant to Section 228 of the DGCL, and by Merger Sub in accordance with the provisions of Section 607.1103 of the FBCA; (b) WNDS and Merger Sub shall have obtained all of the waivers, Permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices (including, but not limited to any filings that are required pursuant to applicable federal and state securities laws) required on its part to be obtained in order to consummate the Merger, except for any which if not obtained or effected would not have a Material Adverse Effect on WNDS and Merger Sub or on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) each of WNDS and Merger Sub shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time of the following conditions:Closing; (ad) the representations and warranties of Parent WNDS and Merger Sub set forth in this Agreement Article 4 shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though Closing Date, except for representations and warranties made on and as of such date (unless any such representation or warranty is made only as of a specific specified date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (ce) the Company shall have received from the opinion Secretary of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPWNDS a certificate (i) certifying the Certificate of Incorporation of WNDS, counsel as amended; (ii) certifying the Bylaws of WNDS, as amended; (iii) certifying the resolutions of the Board of Directors of WNDS adopting and approving this Agreement and the Merger and authorizing the issuance of the shares of WNDS Common Stock to be issued by virtue of the Merger; (iv) certifying that this Agreement and the Merger were approved by the stockholders of WNDS at a meeting of stockholders in accordance with Section 211 of the DGCL or by their consent pursuant to Section 228 of the DGCL; and (v) attesting to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) incumbency of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;officers of WNDS (df) the Company shall have received certificates from the Secretary of an executive officer Merger Sub a certificate (i) certifying the Articles of each Incorporation of Parent and Merger Sub, as amended, (ii) certifying the By-laws of Merger Sub, as amended, (iii) certifying the resolutions of the Board of Directors of Merger Sub adopting and approving this Agreement and the Merger, (iv) certifying that this Agreement and the Merger were approved by the stockholder of Merger Sub in accordance with the provisions of the FBCA, and (v) attesting to the incumbency of the officers of Merger Sub; (g) the Company shall have received from the President of WNDS a certificate certifying (i) WNDS has satisfied and complied with all of the obligations under this Agreement and satisfied all of the conditions precedent which are required to be complied with or satisfied by it prior to the Closing Date; and (ii) all of WNDS’s representations and warranties set forth in Sections 7.3(athis Agreement are true and accurate as of the Closing Date; (h) the Company shall have received from the President of Merger Sub a certificate certifying (i) Merger Sub has satisfied and complied with all of the obligations under this Agreement and satisfied all of the conditions precedent which are required to be complied with or satisfied by it prior to the Closing Date; and (ii) all of Merger Sub’s representations and warranties set forth in this Agreement are true and accurate as of the Closing Date; (i) WNDS shall have delivered all other documents required to be delivered to the Company on or before the Closing Date; (j) Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxx shall be directors of WNDS on the Closing Date; (k) The holder of 2,000,000 shares of WNDS Preferred Stock, 2,000,000 shares of Common Stock and the indebtedness of WNDS described as “Related Party Payable” in the WNDS Financial Statements shall have agreed to surrender said shares and indebtedness to WNDS in exchange for WNDS’ issuance to such holder of a Promissory Note in the principal amount of two hundred seventy-five thousand dollars ($275,000.00) and Section 7.3(bbearing interest at 0.24 percent per annum, secured by a Pledge Agreement, each in the form heretofore approved by the Company, and (ii) said Promissory Note and Pledge Agreement shall have been satisfiedexecuted and delivered; (l) all actions to be taken by the WNDS and the Merger Sub in connection with the consummation of the transactions contemplated hereby, and all certificates, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Company; (m) WNDS shall have completed the closing of a private offering of 316,500,000 shares of WNDS Common Stock in which it will raise at least $25,000 (the “Private Placement”); and (en) Parent WNDS shall have performed all reserved the corporate name KLEANGAS ENERGY TECHNOLOGIES, INC. in the State of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofDelaware.

Conditions to Obligations of the Company. (a) The obligation of the Company hereunder to effect exchange and issue the Merger shall be further Holder Exchanged Shares and to issue and sell the Holder Purchased Shares to the Holder at the Closing is subject to the satisfaction or waiver satisfaction, at or prior to before the Effective Time Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing the Holder with prior written notice thereof: (ai) The Holder shall have executed each of the Exchange Documents to which it is a party and delivered the same to the Company. (ii) The Holder shall have delivered to the Company its Notes and such other documents that are reasonably necessary to terminate the Guaranties, the Security Agreement, the Security Documents and any other security interest that the Holders have in the assets of the Company and, if necessary, as determined by the Company, to terminate the Transaction Agreement, the 2008 Exchange Agreement, the 2008 Exchange Documents and the 2009 Exchange Agreement. (iii) The Holder shall have delivered to the Company the Purchase Price as contemplated by and in accordance with the provisions of Section (1)(d)(ii). (iv) The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Holder shall be true and correct in all material respects as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date); (b) each of Parent , and Merger Sub the Holder shall have performed in all material respects the obligationsperformed, satisfied and complied in all material respects with the covenants, agreements and covenants, conditions required by this Agreement to be performed by performed, satisfied or complied with by it under this Agreement the Holder at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further transactions contemplated by this Agreement are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Effective Time Closing of each of the following conditions: (a) the The representations and warranties of Parent Buyer and Merger Sub set forth in this Agreement shall Article V must be true and correct in all respects (without giving effect to any materiality or material respects, in each case as of date of this Agreement and adverse effect qualifications contained therein) as of the Effective Time Closing Date as though made on and as of the Closing Date (except to the extent such date (unless any such representation or warranty is made only representations and warranties speak as of a specific an earlier date, in which event case, as of such representation date), except, in each case, where the failure of such representations and warranty shall warranties to be so true and correct in all material respects as would not materially and adversely affect the ability of such specified date);Buyer or Merger Sub to consummate the transactions contemplated by this Agreement. (b) each Each of Parent Buyer and Merger Sub shall must have performed and complied with, in all material respects the obligationsrespects, all agreements, covenants and complied in all material respects with the agreements and covenants, obligations required to be performed by or complied with by it Buyer or Merger Sub, as applicable, under this Agreement at or prior to the Effective Time;Closing. (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel The waiting period (including any extension thereof) applicable to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) consummation of the Code. In rendering such opiniontransactions contemplated hereby under the HSR Act will have expired or been terminated, counsel to and all required filings will have been completed under the Company shall be entitled to rely upon customary representations EUMR and assumptions provided by the Companynecessary approvals, Merger Sub and Parent that counsel to clearances or consents under the Company reasonably deems relevant;EUMR will have been procured. (d) the Company shall have received certificates Each of an executive officer of each of Parent Buyer and Merger Sub, certifying that Sub must have delivered or caused to be delivered the conditions set forth in Sections 7.3(a) and items required by Section 7.3(b) have been satisfied; and3.3. (e) Parent None of the parties hereto will be subject to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement. (f) No Governmental Authority shall have performed all enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits the consummation of its obligations to be performed the transactions contemplated by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination this Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.

Conditions to Obligations of the Company. The obligation of the Company to effect sell and issue the Merger shall be further Shares purchasable by the Xxxxx Entities to the Xxxxx Entities in accordance with this Agreement is subject to the satisfaction or waiver at on or prior to the Effective Time Closing Date of the following conditions: (a) each of the representations and warranties of Parent and Merger Sub set forth the Xxxxx Entities contained in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of respects on the Effective Time as though made on Date, and as of such date (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 in all material respects on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date (except (i) to the extent expressly made as of an earlier date in which case such representations and warranties shall be true and correct as of such specified earlier date and (ii) representations and warranties that are qualified as to materiality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects on and as of the Closing Date (except to the extent that such representations and warranties shall be true and correct as of such earlier date)); and each of the covenants and agreements of the Xxxxx Entities contained in this Agreement to be performed on or before the Closing Date shall have been duly and fully performed in all material respects on or before such date; (b) an authorized representative of each of Parent and Merger Sub the Xxxxx Entities shall have performed delivered to the Company at the Closing Date a certificate, in all material respects form and substance reasonably acceptable to the obligationsXxxxx Entities, and complied certifying that the conditions specified in all material respects with the agreements and covenants, required to be performed by or complied with by it under Sections ‎6.2(a) of this Agreement at or prior to the Effective Timehave been fulfilled; (c) each of the Company Xxxxx Entities shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel delivered to the Company shall be entitled to rely upon customary representations a wire transfer (as directed and assumptions provided requested by the Company, Merger Sub and Parent that counsel ) of its share of the Purchase Price payable for the Shares to the Company reasonably deems relevantbe purchased by such Xxxxx Entity as provided hereunder; (d) the Company Xxxxx Entities shall have received certificates of an executive officer of each of Parent executed and Merger Sub, certifying that delivered to the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedCompany the Registration Rights Agreement; and (e) Parent shall have performed all of its obligations other documents, instruments and writing required to be performed delivered by it the Company at or prior to the Effective Time Closing Date under this Agreement or as may be reasonably required by the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including Xxxxx Entities to carry out the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofTransaction.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger shall be transactions contemplated by this Agreement are further subject to the satisfaction fulfillment or waiver the Company’s waiver, at or prior to before the Effective Time Closing, of each of the following conditions: (a) Other than the representations and warranties of Parent Buyer contained in Section 4.1 (Organization, Power and Merger Sub set forth Authority), Section 4.4 (Brokerage), and Section 4.7 (Availability of Funds) (collectively, the “Buyer Specified Representations and Warranties”), the representations and warranties of Buyer contained in this Agreement shall Agreement, the Escrow Agreement, and any certificate or other writing delivered pursuant hereto will be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects, respects (in each the case as of date of this Agreement any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the Effective Time date hereof and on and as of the Closing Date with the same effect as though made on at and as of such date (unless any such representation or warranty is made except those representations and warranties that address matters only as of a specific specified date, the accuracy of which will be determined as of that specified date in which event such representation all respects). The Buyer Specified Representations and warranty shall Warranties will be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such specified date);. (b) each of Parent and Merger Sub shall Buyer will have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and the agreements and covenants, required Escrow Agreement to be performed by or complied with by it under this Agreement at before or prior on the Closing Date; provided, that, with respect to the Effective Time;agreements, covenants and conditions that are qualified by materiality, Buyer will have performed such agreements, covenants and conditions, as so qualified, in all respects. (c) The Escrow Agreement will have been executed and delivered by the Company shall parties thereto and true and complete copies thereof will have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel been delivered to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;Stockholder Representative. (d) Buyer will have delivered the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that Closing Payment in the conditions set forth in Sections 7.3(a) and manner contemplated by Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof2.5.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger shall be further subject to the satisfaction or waiver at on or prior to the Effective Time of the following additional conditions: (a) the representations and warranties of Parent Parent, Holdings and Merger Sub set forth Purchaser in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement respects on and as of the Effective Time as though if made on and as of such date (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 in all material respects as of such specified date); (b) each of Parent Parent, Holdings and Merger Sub Purchaser shall have performed in all material respects the obligations, all obligations and complied in all material respects with the all agreements and covenantscovenants of Parent, required Holdings and Purchaser to be performed by or complied with by it them under this Agreement at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided certificate signed by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent, Holdings and Purchaser to the effect of Sections 6.3(a) and (b); (d) Holdings, Parent and Merger Subthe other parties thereto shall have executed the Stockholders Agreement, certifying that substantially in the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; andform of Exhibit H hereto; (e) Parent The Company's Board of Directors and Holdings' Board of Directors shall, effective as of the Closing Date, be comprised of Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxxxxx X. Xxxxxxxxxx; (f) The employment agreement between the Company and Xxxxxx X. Xxxxxx, in the form previously approved by Parent, shall be in full force and effect; (g) No suit, action or other proceedings shall have performed all been instituted to restrain, enjoin or otherwise prevent the consummation of its obligations to be performed the Merger or the transactions contemplated by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination this Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.; and

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate the Merger transactions contemplated by this Agreement shall be further subject to the satisfaction fulfillment or waiver the Company’s waiver, at or prior to the Effective Time Closing, of each of the following conditions: (a) Other than the Parent Fundamental Representations, the representations and warranties of Parent and Merger Sub set forth contained in this Agreement shall be true Agreement, the Ancillary Documents and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation certificate or warranty is made only as of a specific date, in which event such representation and warranty other writing delivered pursuant hereto shall be true and correct in all material respects on and as of the Signing Date and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects);. The Parent Fundamental Representations shall be true and correct in all respects on and as of the Signing Date and on and as of the Closing Date with the same effect as though made at and as of such date. (b) each of Parent and Merger Sub shall have duly performed in all material respects the obligations, and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the agreements and covenants, required Ancillary Documents to be performed by or complied with by it under this Agreement them prior to or on the Closing Date. (c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby. (d) All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to the Company at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; andClosing. (e) Parent shall have performed all delivered each of the closing deliverables set forth in Section 2.04(b). (f) Parent shall have fulfilled its pre-closing obligations pursuant to be performed by it at or prior Section 5.14 including but not limited to having caused the Effective Time shares of common stock of Parent comprising the Stock Consideration to be: (i) issued pursuant to a registered offering under the Subordinated Debt Termination Agreement Securities Act of 1933, and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof(ii) listed on Nasdaq.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction (or waiver at or prior to by the Effective Time Company) of the following additional conditions: : (a) Parent shall have obtained at its own expense all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices which are required on the part of Parent or Merger Sub to consummate the series of transactions contemplated by this Agreement and to otherwise comply with all applicable laws and regulations in connection with the consummation of the series of transactions contemplated by this Agreement; (b) the representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and respects as of the Effective Time as though made on and as of such date Closing except to the extent they pertain to a different date; (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 in all material respects as of such specified date); (bc) each of Parent and Merger Sub shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; Closing; (cd) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (e) Parent shall have delivered to the Company the Parent Certificate; and (f) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations other certificates and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; instruments (d) the Company shall have received including certificates of an executive officer of each good standing of Parent and Merger SubSub in their respective jurisdiction of organization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior certified charter documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger contemplated by this Agreement shall be further subject to the satisfaction or waiver at or prior to the Effective Time by Xxxx of the following conditionsconditions precedent on and as of the Commencement Date: (a) Xxxx shall have duly executed the Inventory Sales Agreement in form and substance satisfactory to the Company; (b) Xxxx shall have duly executed the Storage Facilities Agreement in form and in substance satisfactory to the Company; (c) Xxxx shall have duly executed the Marketing and Sales Agreement in form and in substance satisfactory to the Company; (d) Xxxx shall have agreed to the form of the Step-Out Inventory Sales Agreement in form and in substance satisfactory to the Company; (e) Xxxx shall have duly executed the Fee Letter; (f) All representations and warranties of Parent and Merger Sub set forth Xxxx contained in this Agreement the Transaction Documents shall be true and correct in all material respects, in each case as of date of this Agreement on and as of the Effective Time as though made on and as of such date (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 in all material respects as of such specified date)Commencement Date; (bg) each of Parent and Merger Sub Xxxx shall have performed in complied with all material respects the obligations, covenants and complied in all material respects with the agreements and covenants, hereunder that it is required to be performed by comply with on or complied with by it under this Agreement at or prior to before the Effective Time;Commencement Date; and PORTIONS OF THIS EXHIBIT DENOTED WITH THREE ASTERISKS (***) HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. (ch) the Company Xxxx shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel delivered to the Company shall such other certificates, documents and instruments as may be entitled reasonably necessary to rely upon customary representations and assumptions provided by consummate the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedtransactions contemplated herein; and (ei) Parent Xxxx shall have performed all delivered satisfactory evidence of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereoffederal form 637 license.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction satisfaction, or waiver at or prior to by the Effective Time Company and (if required after the Requisite Stockholder Approval) the Company Stockholders, of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Stockholder Approval by the Company Stockholders; (b) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in this Agreement Article III shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though when made on the date hereof and as of such date (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 in all material respects as of the Effective Time as if made as of the Effective Time, except for representations and warranties made as of a specific date, which shall be true and correct as of such specified date); (bc) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (d) the Buyer and the Transitory Subsidiary shall have delivered to the Company a certificate (without qualification as to knowledge or materiality or otherwise) to the effect that each of the conditions specified in clauses (b) and (c) of this Section 5.2 is satisfied in all respects; (e) the Company Stockholders shall have received from Morse, Zelnick, Rose & Lander LLP, counsel to the Buyer and the Transitory Subsidiary, an opinion in the form set forth as Exhibit G attached hereto, addressed to the Company and dated as of the Closing Date; (f) the Buyer and each of the Company Stockholders shall have entered into the Registration Rights Agreement and such Agreement shall be in full force and effect on the Closing Date in accordance with its terms; (g) the Buyer, the Company Stockholders, the Escrow Agent and the Indemnification Representative shall have entered into the Escrow Agreement and such Agreement shall be in full force and effect on the Closing Date in accordance with its terms; (h) the Company Stockholders shall have received a copy of a letter from each of Xxxxx Xxxxxxxx LLP and PriceWaterhouse Coopers LLP, auditors for the Company and the Buyer, respectively, in a form reasonably satisfactory to the Buyer, to the effect that the Company and, in the case of the letter from PriceWaterhouse Coopers LLP, the Buyer may treat the Merger as a "pooling of interests" for accounting purposes; (i) the shares of Buyer Common Stock to be issued to the Company Stockholders in connection with the Merger shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance; (j) the Company shall have received the opinion of Xxxxxxx Xxxxxxx from Xxxxxx, Xxxxx & Xxxxxxxx Bockius LLP, counsel to the Company, a written tax opinion based on reasonably requested representation letters of Buyer and the Company and dated as of the Closing Date, in a form reasonably satisfactory to the Company, to the effect that (i) the Merger will be treated for United States federal income tax purposes as constitutes a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinioncode; (ii) Buyer, counsel Transitory Subsidiary and the Company will each be a party to the Company shall be entitled to rely upon customary representations and assumptions provided by reorganization within the Companymeaning of Section 368(a) of the Code; (iii) none of Buyer, Merger Sub and Parent that counsel to Transitory Subsidiary or the Company reasonably deems relevant; will recognize gain or loss for U.S. Federal income tax purposes as a result of the Merger; and (div) the Company shall have Stockholders will not recognize gain or loss for U.S. Federal income tax purposes as a result of the Merger (except as a result of cash received certificates in lieu of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedfractional shares); and (ek) Parent shall have performed all of its obligations actions to be performed taken by it at or prior the Buyer and the Transitory Subsidiary in connection with the Merger and the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofCompany.

Conditions to Obligations of the Company. The obligation of the ---------------------------------------- Company to effect consummate the Merger Transactions contemplated to occur at the Closing shall be further subject to conditioned upon the satisfaction or waiver fulfillment, at or prior to the Effective Time Closing, of the following conditionsconditions by the Investor, unless waived by the Company at or prior to the Closing: (a) the The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Investor contained herein shall be true and correct in all material respects (except for representations and warranties that are qualified as to materiality, which shall be true and correct), in each case when made and at and as of the Closing (except for representations and warranties made as of a specified date, which shall be true and correct as of such specified date);) with the same force and effect as though made at and as of such time, except for inaccuracies in respect of the representations and warranties set forth in Section 4.3, (disregarding any qualifications as to materiality contained therein) that in the aggregate would not be reasonably expected to have a Material Adverse Effect on the Company or to materially adversely affect the Transactions. (b) each of Parent and Merger Sub The Investor shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, contained herein or required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior before the Closing. (c) An officer of the Investor shall have delivered to the Effective Time under Company a certificate, dated the Subordinated Debt Termination Agreement and Tax Receivable Termination AgreementClosing Date, including the payment of all amounts due by Parent certifying as to the relevant parties thereto pursuant fulfillment of the conditions set forth in paragraphs (a) and (b) above. (d) The Company shall have been furnished with an Opinion of Counsel to the terms thereofInvestor dated the Closing Date. (e) All corporate and other proceedings of the Investor in connection with the Transactions, and all documents and instruments incident thereto, shall be reasonably satisfactory in form and substance to the Company, and the Investor shall have delivered to the Company such receipts, documents, instruments and certificates, in form and substance reasonably satisfactory to the Company which the Company shall have reasonably requested in order to consummate the Transactions.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Parent shall have obtained (and shall have provided copies thereof to the Company) the written consents of (i) all of the members of its Board of Directors, (ii) all of the members of the Board of Directors of Acquisition Subsidiary, (iii) the sole stockholder of Acquisition Subsidiary, (iv) all of the members of the Board of Directors of Split-Off Subsidiary, (v) the sole stockholder of Split-Off Subsidiary, and (vi) holders of more than 50% of the Parent Common Stock outstanding immediately prior to the Effective Time, in each case to the execution, delivery and performance by the each such entity of this Agreement and/or the other Transaction Documentation to which each such entity a party, in form and substance satisfactory to the Parent; (b) the Parent shall have obtained (and shall have provided copies thereof to the Company) all of the other waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Parent or any of its Subsidiaries, except for any the failure of which to obtain or effect does not, individually or in the aggregate, have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of the Parent and Merger Sub set forth in this Agreement (when read without regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) shall be true and correct in all material respects, in each case as of the date of this Agreement and shall be true and correct as of the Effective Time as though made on and as of such date the Effective Time (unless any provided, however, that to the extent such representation or and warranty is made only as of a specific expressly relates to an earlier date, in which event such representation and warranty shall be true and correct in all material respects as of such specified earlier date), except for any untrue or incorrect representation and warranty that, individually or in the aggregate, do not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (bd) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time, except when any non-performance or non-compliance does not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (ce) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Parent shall have delivered to the Company a certificate (the “Parent Certificate”) to the effect that each of the conditions specified in clause (h) (with respect to the Parent’s due diligence of the Company) of Section 5.1 and clauses (a) through (e) (insofar as clause (e) relates to Legal Proceedings involving the Parent or the Acquisition Subsidiary) of this Section 5.3 is satisfied in all respects, and covering such other matters as the Company shall reasonably request; (g) Jxx New shall have entered into an employment agreement with the Parent or the Company mutually satisfactory to the Company, the Parent and to Mr. New; (h) the Board of Directors of the Parent shall have adopted, and the shareholders of the Parent shall have approved, the Parent Equity Plan; (i) the Company shall have received a certificate of Parent’s transfer agent and registrar certifying that as of the opinion Closing Date there are 21,246,600 shares of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel Parent Common Stock issued and outstanding (without giving effect to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning retirement of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each 20,178,000 shares of Parent and Merger Sub, certifying that Common Stock in connection with the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedShare Contribution); and (ej) the Parent shall have performed delivered to the Company (i) evidence that the Parent’s Board of Directors is authorized to consist of seven (7) individuals, (ii) evidence of the resignations of all individuals who served as directors and/or officers of its obligations to be performed by it at or the Parent immediately prior to the Effective Time under Time, which resignations shall be effective as of the Subordinated Debt Termination Agreement Effective Time, (iii) evidence of the appointment of five (5) directors to serve immediately following the Effective Time, of whom four (4) members shall have been designated by the controlling shareholders of the Company prior to the Merger, and Tax Receivable Termination Agreementat least one (1) other member shall be “independent” (as defined in applicable SEC rules and the rules of The Nasdaq Stock Market), including and (iv) evidence of the payment appointment of all amounts due by such executive officers of the Parent to serve immediately following the relevant parties thereto pursuant to Effective Time as shall have been designated by the terms thereofCompany.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction satisfaction, or the waiver at or prior to by 46 the Effective Time Company, of the following additional conditions: (a) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Article III shall be true and correct in all material respects as of such specified date)when made on the date hereof; (b) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time, except when any such failure to perform or comply would not result in a material adverse change in the assets, business, financial condition or results of operation of the Buyer or the Transitory Subsidiary; (c) no action, suit or proceeding shall be pending or threatened by or before any Governmental Entity wherein an unfavorable judgment, order, decree, stipulation or injunction would prevent or invalidate consummation of the Merger, and no such judgment, order, decree, stipulation or injunction shall be in effect; (d) the Buyer shall have entered into a significant strategic alliance with a third party (it being agreed that the Company may not waive this condition prior to April 7, 1997); (e) neither the Buyer nor the Transitory Subsidiary shall be the subject of a petition for reorganization or liquidation under the federal bankruptcy laws or under state insolvency laws, nor shall either the Buyer or the Transitory Subsidiary have made an assignment for the benefit of creditors, nor shall any similar act or event of bankruptcy have occurred; (f) the Buyer shall have delivered to the Company a certificate to the effect that each of the conditions specified in clauses (a) through (e) of this Section 5.3 is satisfied; (g) the Buyer shall have entered into a Registration Rights Agreement in the form attached hereto as Exhibit K with the Company Stockholders; and (h) the Company shall have received the from Hale xxx Dorr XXX an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel with respect to the Companymatters set forth in Exhibit L attached hereto, addressed to the Company and dated as of the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.47 ARTICLE VI

Conditions to Obligations of the Company. The obligation Notwithstanding any other provision of this Agreement, the obligations of the Company to effect consummate the Merger and the other transactions contemplated hereby shall be further subject to the satisfaction or waiver satisfaction, at or prior to the Effective Time Closing Date, of the following conditions: (a) the The representations and warranties of Parent and Merger Sub set forth Buyer in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement respects on and as of the Effective Time Closing Date with the same effect as though if made on the Closing Date, and as of such date (unless any such representation Buyer shall have complied with all covenants and agreements and satisfied all conditions on its part to be performed or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct in all material respects as of such specified date);satisfied on or prior to the Closing Date. (b) each of Parent and Merger Sub The Company shall have performed in all material respects received from Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for Buyer and Newco, a written opinion dated the obligations, Closing Date and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior addressed to the Effective Time;Company in substantially the form attached as Annex K hereto. (c) the The Company shall have received the opinion following under cover of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to a certificate of the Company, Secretary of Buyer dated the Closing DateDate in substantially the form attached as Annex L hereto: (i) Copies of resolutions of the Board of Directors of Buyer authorizing and approving the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by Buyer pursuant hereto and thereto; (ii) A certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that the Certificate of Incorporation and Bylaws of Buyer delivered to the Company at the time of, or prior to, the execution of this Agreement have been validly adopted and have not been amended or modified; and (iii) Such additional supporting documentation and other information with respect to the transactions contemplated hereby as the Company or its counsel may reasonably request. (d) The Company shall have received a certificate of Buyer, signed by its President, in substantially the form attached as Annex M hereto. (e) The Company shall have received the following under cover of a certificate of the Secretary of Newco dated the Closing Date in substantially the form attached as Annex N hereto: (i) Copies of resolutions of (A) the Board of Directors of Newco authorizing and approving the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by Newco pursuant hereto and thereto, and (B) the shareholder of Newco approving this Agreement and the Merger; (ii) A certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that the Articles of Incorporation and Bylaws of Newco delivered to the Company at the time of, or prior to, the execution of this Agreement have been validly adopted and have not been amended or modified; and (iii) Such additional supporting documentation and other information with respect to the transactions contemplated hereby as the Company or its counsel may reasonably request. (f) The Company shall have received a certificate of Newco, signed by its President, in substantially the form attached as Annex O hereto. (g) The Company shall have received the written opinion of its counsel to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion. (h) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, counsel opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance reasonably satisfactory to the Company and its counsel. (i) The Buyer and the Investor Shareholders shall be entitled have entered into a Registration Rights Agreement substantially in the form attached hereto as Annex P. (j) Buyer, the Escrow Agent and the Representative shall have entered into the Escrow Agreement. (k) Buyer shall have executed and delivered to rely upon customary representations and assumptions provided the holders of Company Warrants to purchase the Buyer Warrant Shares. (l) The Promissory Note dated May 2, 2000 executed by the CompanyCompany in favor of Prime Ventures, Merger Sub and Parent that counsel to LLC, a Delaware limited liability company, in the Company reasonably deems relevant; (d) the Company amount of $250,000, shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth been paid in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereoffull.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Parent shall have obtained (and shall have provided copies thereof to the Company) the written consents of (i) all of the members of its Board of Directors, (ii) all of the members of the Board of Directors of Acquisition Subsidiary, (iii) the sole stockholder of Acquisition Subsidiary, (iv) all of the members of the Board of Directors of Split-Off Subsidiary, and (v) the sole stockholder of Split-Off Subsidiary, in each case to the execution, delivery and performance by the each such entity of this Agreement and/or the other Transaction Documentation to which each such entity a party, in form and substance satisfactory to the Parent; (b) the Parent shall have obtained (and shall have provided copies thereof to the Company) all of the other waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Parent or any of its Subsidiaries, except for waivers, permits, consents, approvals or other authorizations the failure of which to obtain or effect does not, individually or in the aggregate, have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of the Parent and Merger Sub set forth in this Agreement (when read without regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) shall be true and correct in all material respects, in each case as of the date of this Agreement and shall be true and correct as of the Effective Time as though made on and as of such date the Effective Time (unless any provided, however, that to the extent such representation or and warranty is made only as of a specific expressly relates to an earlier date, in which event such representation and warranty shall be true and correct in all material respects as of such specified earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (bd) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time, except for such non-performance or non-compliance as does not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (ce) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Board of Directors of the Parent shall have adopted, and the shareholders of the Parent shall have approved, the Parent Equity Plan; (g) the Parent shall have delivered to the Company a certificate (the “Parent Certificate”) to the effect that each of the conditions specified in clauses (a) and (j) (with respect to the Company’s due diligence of the Parent and any sales or acquisitions of the Parent Common Stock) of Section 5.1 and clauses (a) through (f) (insofar as clause (e) relates to Legal Proceedings involving the Parent or the Acquisition Subsidiary) of this Section 5.3 is satisfied in all respects, and covering such other matters as the Company shall reasonably request; (h) the Company shall have received a certificate of Parent’s transfer agent and registrar certifying that as of the opinion Closing Date there are 30,573,202 shares of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel Parent Common Stock issued and outstanding (without giving effect to the Company, dated retirement of 24,400,000 shares of Parent Common Stock in connection with the Closing Date, to Share Contribution); (i) the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel Parent shall have delivered to the Company (i) evidence that the Parent’s Board of Directors is authorized to consist of one (1) individual, (ii) evidence of the resignations of all individuals who served as directors and/or officers of the Parent immediately prior to the Effective Time, which resignations shall be entitled effective as of the Effective Time, (iii) evidence of the appointment of the following one (1) director to rely upon customary representations serve immediately following the Effective Time: Kxxxxxxx Xxxxxxx, as Chairman, and assumptions provided (iv) evidence of the appointment of such executive officers of the Parent to serve immediately following the Effective Time as shall have been designated by the Company, Merger Sub including Kxxxxxxx Xxxxxxx as Chief Executive Officer. It is understood by the Parties that promptly after the Closing (x) one (1) additional independent director, designated by the Company, and (y) one (1) additional director, designated by Buyside, shall be appointed to the Parent’s Board of Directors; (j) the Company shall have completed all necessary legal and transactional due diligence of the Parent that counsel and any sales or acquisitions of the Parent Common Stock by the Parent or any of the Parent’s stockholders consummated or contemplated prior to the Effective Time, satisfactorily to the Company reasonably deems relevantin its sole discretion; (dk) certain individuals holding shares of Parent Common Stock immediately prior to the closing of the Merger shall have executed and delivered to the Parent an agreement substantially in the form of Exhibit H attached hereto (the “Parent Lock-Up and No-Shorting Agreements”); and (l) the Company shall have received certificates of an executive officer of each of from Lxxxxx & Lxxxxx, LLC, counsel to the Parent and Merger Subthe Acquisition Subsidiary, certifying that an opinion with respect to the conditions matters set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior Exhibit I attached hereto, addressed to the Effective Time under Company and dated as of the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing Date.

Conditions to Obligations of the Company. The Company’s obligation of to consummate the Company to effect the Merger shall be further Transaction is subject to the satisfaction or written waiver at or prior to the Effective Time of (where permissible) the following conditions: (a) all of the representations and warranties of Parent GTY and Merger Sub set forth contained in Article 3 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein) in all material respects, in each case as of date of this Agreement and respects as of the Effective Time Closing Date, as though made on and as of such date the Closing Date (unless any such representation or warranty is except to the extent expressly made only as of a specific an earlier date, in which event case of as such representation and warranty shall be true and correct in all material respects as of such specified earlier date); (b) each of Parent GTY and Merger Sub shall have performed and complied with, in all material respects the obligationsrespects, all of its covenants and complied agreements in all material respects with the agreements and covenants, required this Agreement to be performed by or complied with by it under this Agreement at or prior to or at the Effective TimeClosing; (c) GTY shall have delivered to the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Companya certificate, dated as of the Closing Date, to the effect certifying (i) that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) each of the Code. In rendering such opinionconditions specified above in Section 6.3(a), counsel to (b) and (c) is satisfied; (ii) the Company shall be entitled to rely upon customary representations Organizational Documents of each GTY Party, (iii) the authorizing resolutions of each GTY Party, and assumptions provided by (iv) the Company, Merger Sub incumbency and Parent that counsel to signatures of the Company reasonably deems relevantPersons signing this Agreement or any Ancillary Agreement on behalf of each GTY Party; (d) GTY shall have issued and delivered the Merger Shares (less the Escrow Shares), the Company Indebtedness Paid at Closing, the Expense Fund and the Cash Consideration to the Exchange Agent; (e) GTY shall have received certificates deposited the Escrow Shares with the Escrow Agent; (f) The founder shares of an executive officer GTY Common Stock held by GTY’s sponsor and the shares of each GTY Common Stock held by similarly situated participants (based upon their role with the applicable target company and the amount of Parent and Merger Sub, certifying that equity held in the conditions applicable target company) in the Roll-Up Transactions shall be subject to lock-up terms substantially similar to those set forth in Sections 7.3(athe form of Founder Lock-Up Agreement attached hereto as Exhibit F; (g) GTY shall have delivered to OC Holders’ Representative the Escrow Agreement executed by GTY and Section 7.3(bthe Escrow Agent; (h) GTY shall have been satisfieddelivered to the Founders the executed employment agreements of the Founders, in the forms attached hereto as Exhibits G ; and (ei) Parent GTY shall have performed assigned to Holdings all of its GTY’s rights, interests and obligations to under this Agreement and Holdings shall have accepted such assignment. All such agreements, documents and other items shall be performed by it at or prior in form and substance reasonably satisfactory to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofCompany.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Parent shall have obtained (and shall have provided copies thereof to the Company) the written consents of (i) the sole stockholder of Acquisition Subsidiary, (ii) all of the members of the Board of Directors of Split-Off Subsidiary, (iii) the sole stockholder of Split-Off Subsidiary, and (iv) holders of more than 50% of the Parent Common Stock outstanding immediately prior to the Effective Time, in each case, approving the adoption of this Agreement and the transactions contemplated hereby, including, without limitation, the Merger and approving the execution, delivery and performance by the each such entity of this Agreement and/or the other Transaction Documentation to which each such entity a party, in form and substance reasonably satisfactory to the Company; (b) the Parent shall have obtained (and shall have provided copies thereof to the Company) all of the other waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 4.2 which are required on the part of the Parent or any of its Subsidiaries, except for waivers, permits, consents, approvals or other authorizations the failure of which to obtain or effect does not, individually or in the aggregate, have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (c) the representations and warranties of the Parent and Merger Sub set forth in this Agreement (when read without regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) shall be true and correct in all material respects, in each case as of the date of this Agreement and shall be true and correct as of the Effective Time as though made on and as of such date the Effective Time (unless any provided, however, that to the extent such representation or and warranty is made only as of a specific expressly relates to an earlier date, in which event such representation and warranty shall be true and correct in all material respects as of such specified earlier date), except for any untrue or incorrect representations and warranties that, individually or in the aggregate, do not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (bd) each of the Parent and Merger Sub the Acquisition Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (c) , except for such non-performance or non-compliance as does not have a Parent Material Adverse Effect or a material adverse effect on the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) ability of the Code. In rendering such opinion, counsel Parties to consummate the Company shall be entitled to rely upon customary representations and assumptions provided transactions contemplated by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevantthis Agreement; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed delivered to the Company the duly executed written resignation of Xxxxx Xxxxxxx as a director, officer and employee of the Parent, effective upon the Effective Time; (f) all debts, adverse claims, liabilities, judgments and obligations, including tax obligations, of its the Parent and the Acquisition Subsidiary, whether accrued, contingent or otherwise and whether known or unknown, including those that may arise after the Closing but were incurred prior to the Closing Date, and excluding in all cases the obligations of the Parent under this Agreement and the other Transaction Documents, have been discharged or waived by the Parent or the Acquisition Subsidiary prior to the Closing Date; (g) no Action shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be performed by it at rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (h) the Board of Directors of the Parent shall have adopted, and the stockholders of the Parent shall have approved, the Parent Equity Plan; (i) neither the Company nor the Parent has determined in good faith that the Parent is a “shell company” (as such term is defined in Rule 12b-2 under the Exchange Act); (j) the Parent shall have delivered to the Company a certificate (the “Parent Certificate”) to the effect that each of the conditions specified in clauses (a) through (i) (insofar as clause (g) relates to Actions involving the Parent or the Acquisition Subsidiary and clause (i) relates to the determination of the Parent) of this Section 5.3 is satisfied in all respects; (k) the Company shall have received an official stockholder list from Parent’s transfer agent and registrar showing that as of immediately prior to the Effective Time under there are 1,000,000 shares of Parent Common Stock issued and outstanding (without giving effect to the Subordinated Debt Termination Agreement cancellation of 40,486,000 shares of Parent Common Stock in connection with the Share Contribution); and (l) the Parent shall have delivered to the Company (i) evidence that the Parent’s Board of Directors is authorized to consist of at least five (5) but no more than seven (7) individuals, with the Board able to fill any vacancy, (ii) evidence of the resignations of all individuals who served as directors and/or officers of the Parent immediately prior to the Effective Time, which resignations shall be effective as of the Effective Time, (iii) evidence of the appointment of the following persons to serve as directors immediately following the Effective Time: Xxxx Xxxxxxxxxx, Luke Düster, Xxxxxx X. Xxxxxx, Xxxxxxx Xxx, Xxxxxx X. Xxxxxx and Tax Receivable Termination AgreementXxxxx Xxxxxx, with one seat left vacant, and (iv) evidence of the appointment of such executive officers of the Parent to serve immediately following the Effective Time as shall have been designated by the Company, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofXxxx Xxxxxxxxxx as Chief Executive Officer.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger shall will be further subject to the satisfaction or waiver at or prior to the Effective Time Date of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by Applicable Law: (a) Each of Genmar and the Merger Subsidiary shall have complied in all material respects with their respective agreements contained in this Agreement, and the certificates to be furnished to the Company pursuant to this section, shall be true, correct and complete; b) Genmar and Merger Subsidiary shall have furnished the Company with favorable legal opinion customary for transactions of this type and size, dated the Effective Date, of their legal counsel; c) The representations and warranties of Parent Genmar and the Merger Sub set forth Subsidiary contained in this Agreement shall be true and correct in all material respects, in each case respects as of the date of this Agreement hereof and at and as of the Effective Time Date with the same force and effect as though made on and as of such date (unless any such representation or warranty is made only date, except those which speak as of a specific certain date, in which event such representation and warranty shall continue to be true and correct in all material respects as of such specified date); (b) each . Each and all of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed or satisfied by or complied with by it each of Genmar and the Merger Subsidiary under this Agreement at or prior to the Effective TimeDate shall have been duly performed or satisfied in all material respects, and each of Genmar and the Merger Subsidiary shall have furnished the Company with such certificates and other documents evidencing the truth of such representations and warranties, and the performance of such agreements as the Company shall have reasonably requested; (cd) All actions taken by Genmar or the Merger Subsidiary, respectively, to approve and adopt this Agreement, the Merger and the Transactions shall comply in all respects with and shall be legal, valid, binding, enforceable and effective under the laws of the state of Delaware, their respective Organizational Documents and all Material Agreements to which they are party or by which any of their respective property or assets are bound; e) There exists as of the Effective Date no uncured Funding Default which would result in personal liability to any stockholder of the Company; f) If the Closing Date occurs without a Public Offering, the stockholders of the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of financial and narrative information required in Section 368(a1.3(b); and g) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the The Company shall have received certificates from Genmar, based solely on its activities under the Management Agreement, from the date of an executive officer of the Management Agreement through the Effective Date ( or until such earlier date that the Management Agreement was terminated in accordance with its terms), a certificate that to its Knowledge that each of Parent the representations and Merger Subwarranties in Article III remain true and correct (to the extent true and correct on the date hereof) as of the Effective Date (or such earlier termination date), certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent except those which speak as of a certain date, which shall have performed all of its obligations continue to be performed by it at or prior to true and correct as of such date and the Effective Time under Date (or such earlier termination date); PROVIDED, HOWEVER, the Subordinated Debt Termination Agreement certificate shall not contain any reference to and Tax Receivable Termination Agreementshall not be relied upon with respect to Sections 3.1, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof3.2, 3.3, 3.4, 3.5, 3.7, 3.9, 3.13, 3.15, 3.17, 3.18, 3.19 or 3.20.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the representations Target and warranties of Parent and the Merger Sub set forth in this Agreement shall be true and correct in have obtained all material respects, in each case as of date of this Agreement and as of the Effective Time as though made waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices (including, but not limited to any filings that are required with the SEC), except for any which if not obtained or effected would not have a Material Adverse Effect on and as the Target or the Merger Sub or on the ability of such date (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 in all material respects as of such specified date)the Parties to consummate the transactions contemplated by this Agreement; (b) each of Parent the Target and the Merger Sub shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (c) the Company representations and warranties of the Target and the Merger Sub set forth in Article IV shall have received the opinion be true and correct as of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated except for United States federal income tax purposes representations and warranties made as of a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinionspecified date, counsel to the Company which shall be entitled to rely upon customary representations true and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevantcorrect as of such date; (d) the Company shall have received certificates from the Secretary of an executive officer the Target a certificate (i) certifying the Articles of each Incorporation of Parent the Target, (ii) certifying the Bylaws of the Target, (iii) certifying the resolutions of the Board of Directors of the Target, and (iv) attesting to the incumbency of the officers of the Target; (e) the Company shall have received from the Secretary of the Merger Sub a certificate (i) certifying the Articles of Incorporation of the Merger Sub, (ii) certifying that the conditions set forth Bylaws of the Merger Sub, (iii) certifying the resolutions of the Board of Directors and the sole stockholder of the Merger Sub, and (iv) attesting to the incumbency of the officers of the Merger Sub; (f) all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in Sections 7.3(aform and substance to the Company; (g) and Section 7.3(b) the Target shall have been satisfiedeffectuated a one-for-ten Reverse Stock Split on or prior to the Closing Date; and (eh) Parent other than obligations to Rxxxxxx Xxxxxxx, Chief Executive Officer of the Target, in the amount of up to $150,000, the Target shall have performed all no more than $10,000 in liabilities at the Closing and outstanding convertible debentures of its obligations $240,000 to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination AgreementCornell Capital Partners, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof.L.P.

Conditions to Obligations of the Company. The Company’s obligation to sell and issue the Securities at the Closing is subject to the fulfillment to the satisfaction of the Company to effect the Merger shall be further subject to the satisfaction or waiver at on or prior to the Effective Time Closing Date of the following conditions, any of which may be waived by the Company: (a) The representations and warranties made by the Investors in Section 5 hereof, other than the representations and warranties of Parent contained in Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and Merger Sub set forth in this Agreement shall be true and correct in all material respects5.9 (the “Investment Representations”), in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (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 in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of such specified said date); (b) each . The Investment Representations shall be true and correct in all respects when made, and shall be true and correct in all respects on the Closing Date with the same force and effect as if they had been made on and as of Parent and Merger Sub said date. The Investors shall have performed in all material respects the obligations, all obligations and complied in all material respects with the agreements and covenants, conditions herein required to be performed or observed by or complied with by it under this Agreement at them on or prior to the Effective Time;Closing Date. (b) The Investors shall have executed and delivered the Registration Rights Agreement. (c) The Investors shall have delivered one or more Certificates, executed on behalf of each Investor by an authorized signatory, dated as of the Closing Date, certifying to the fulfilment of the conditions specified in subsection (a) with respect to such Investor. (d) The Investors shall have delivered to Company the Purchase Price. (e) The Investors shall have executed and delivered to the Company a Voting Agreement pursuant to which the Investors agree to vote all of their Shares in favor of an amendment to the Company’s Certificate of Incorporation to increase the authorized number of shares of Common Stock to 75,000,000. (f) The Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, (A) written notice from Nasdaq to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) issuance and sale of the Code. In rendering such opinionSecurities as contemplated hereby does not violate the shareholder approval requirements of Nasdaq Marketplace Rule 4350(i), counsel to and (B) oral confirmation from Nasdaq that the Company shall be entitled to rely upon customary representations Shares and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company Warrant Shares shall have received certificates been approved for inclusion in Nasdaq upon official notice of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofissuance.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further Closing is subject to the satisfaction or waiver of the following further conditions: (i) Parent and Sub shall have performed in all material respects all of their obligations hereunder required to be performed by them at or prior to the Effective Time of the following conditions: Closing Date, (aii) the representations and warranties of Parent and Merger Sub set forth contained in this Agreement at the time of its execution and delivery and in any certificate or other writing delivered by Parent or Sub pursuant hereto shall be true and correct in all material respects, in each case as of date of this Agreement respects at and as of the Effective Time Closing Date, as though if made on at and as of such date and (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 in all material respects as of such specified date); (b) each of Parent and Merger Sub shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (ciii) the Company shall have received a certificate signed by the Chief Financial Officer of Parent and the President of Sub to the foregoing effect. (b) No proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Person before any court, arbitrator or governmental body, agency or official and be pending. (c) The Company shall have received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the CompanyParent's Counsel, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Codespecified in Sections 5.01 through 5.04. In rendering such opinion, such counsel to the Company shall be entitled to may rely upon customary representations and assumptions provided certificates of public officers, as to matters governed by the laws of jurisdictions other than the Commonwealth of Massachusetts or the federal laws of the United States of America, upon opinions of counsel reasonably satisfactory to the Company, Merger Sub and Parent that counsel copies of which shall be contemporaneously delivered to the Company reasonably deems relevant;Company, and as to matters of fact, upon certificates of officers of Parent and Sub. (d) the Company Parent and Sub shall have received certificates of an executive officer of executed and delivered each of Parent and Merger Subthe Ancillary Agreements to be entered into by them at the Closing, certifying that in each case substantially in the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; andform attached as an exhibit to this Agreement. (e) Parent The Company and Stockholder shall have performed received all items specified in Section 2.02 of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination this Agreement and Tax Receivable Termination Agreementall other closing documents that they may reasonably request, including the payment of all amounts due by Parent in form and substance reasonably satisfactory to the relevant parties thereto pursuant to the terms thereofthem.

Conditions to Obligations of the Company. The obligation of the ---------------------------------------- Company to effect consummate the Merger transactions contemplated to occur at the Closing shall be further subject to conditioned upon the satisfaction or waiver fulfillment, at or prior to the Effective Time Closing, of the following conditionsconditions by each of the other parties, unless waived by the Company: (a) the The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all material respects, in each case as of date of this Agreement and as of the Effective Time as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty Seller contained herein shall be true and correct in all material respects (except for representations and warranties that are qualified as to materiality, which shall be true and correct), in each case when made and at and as of the Closing (except for representations and warranties made as of a specified date, which shall be true and correct as of such specified date);) with the same force and effect as though made at and as of such time, except for inaccuracies in respect of the representations and warranties set forth in Section 4.7 and the third sentence of Section 4.10(a) (disregarding any qualifications as to materiality contained therein) that in the aggregate would not be reasonably expected to have a Material Adverse Effect on either Seller or its ability to perform its obligations under this Agreement or to materially adversely affect the transactions contemplated hereby. (b) each of Parent and Merger Sub Each Seller shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, contained herein required to be performed by or complied with by it under this Agreement at or prior to the Effective Time; (c) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior before the Closing. (c) An officer of each Seller shall have delivered to the Effective Time under Company a certificate, dated the Subordinated Debt Termination Agreement and Tax Receivable Termination AgreementClosing Date, including the payment of all amounts due by Parent certifying as to the relevant parties thereto pursuant fulfillment of the conditions set forth in paragraphs (a) and (b) above as to it. (d) Sellers shall have furnished the Company with opinions of counsel, each dated the Closing Date, in substantially the forms of Exhibits A and B. (e) All corporate and other proceedings of each Seller in connection with the Tritel License Transfer and the other transactions contemplated hereby, and all documents and instruments incident thereto, shall be reasonably satisfactory in form and substance to the terms thereofCompany, and each Seller shall have delivered to the Company such receipts, documents, instruments and certificates, in form and substance reasonably satisfactory to the Company, which the Company shall have reasonably requested.

Conditions to Obligations of the Company. The obligation of the ---------------------------------------- Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Buyer and the Transitory Subsidiary shall have obtained all of the waivers, permits, consents, approvals or authorization, and effected all of the registrations, filings and notices referred to in Section 4.2 (with respect to the Buyer and the Transitory Subsidiary); (b) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in this Agreement Article III shall be true and correct in all material respects, in each case as of complete when made on the date of this Agreement hereof and shall be true and complete as of the Effective Time as though if made on and as of such date (unless any such representation or warranty is the Effective Time, except for representations and warranties made only as of a specific date, in which event such representation and warranty shall be true and correct in all material respects complete as of such specified date), and except for representations and warranties made as of a specific date, which shall be true and complete as of such date, except where failures of representations to be true and complete, individually or in the aggregate, have not had a Buyer Material Adverse Effect; (bc) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (d) each of the Buyer and the Transitory Subsidiary shall have delivered to the Company a certificate (without qualification) to the effect that each of the conditions specified in clauses (a)(ii), and (e) of Section 5.1 (insofar as they relate to the Buyer or the Transitory Subsidiary) and clauses (a), (b) and (c) of this Section 5.3 is satisfied in all respects; (e) the Company shall have received the an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPfrom Xxxxxx Pepper and Shefelman, counsel in a form reasonably satisfactory to the Company, dated the Closing Date, based upon certain factual representations of the Company, the Transitory Subsidiary and the Buyer reasonably requested by such counsel, to the effect that the Merger will constitute a reorganization for federal income tax purposes within the meaning of Section 368(a) of the Code and no Company Stockholder who received Merger Shares in exchange for Company Shares in the Merger shall recognize taxable gain or loss upon such exchange; (f) all actions to be taken by the Buyer and the Transitory Subsidiary in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Company; (g) the Buyer shall have received a letter from Ernst & Young LLP, auditors for the Buyer, in a form reasonably satisfactory to the Buyer, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company Buyer shall be entitled to rely upon customary representations and assumptions treat the Merger as a "pooling of interests" for accounting purposes as provided by for in Accounting Principles Board Opinion No. 16 (it is a condition for Ernst & Young LLP to deliver such letter that it receives a letter from KPMG Peat Marwick LLP addressing "pooling of interests" treatment of the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;Merger); and (dh) the Company shall have received certificates from the General Counsel of the Buyer and the Transitory Subsidiary an executive officer of each of Parent and Merger Sub, certifying that opinion with respect to the conditions matters set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior Exhibit D attached hereto, addressed to the Effective Time under Company and dated as of the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereof--------- Closing Date.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction (or waiver at or prior to by the Effective Time Company) of the following additional conditions: (a) the representations and warranties of Parent the Buyer and Merger Sub the Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct and the representations and warranties of the Buyer and the Transitory Subsidiary that are not qualified as to materiality shall be true and correct in all material respects, in each case as of date of this Agreement and case, as of the Effective Time Closing as though made on and as of such date (unless the Closing, provided that, to the extent that any such representation or warranty is made only speaks as of a specific specified date, in which event such representation and warranty shall it need only be true and correct in all material respects as of such specified date); (b) each of Parent the Buyer and Merger Sub the Transitory Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (c) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (d) the Buyer shall have delivered, or Made Available, to the Company the Buyer Certificate; and (e) the Company shall have received such other certificates and instruments (including certificates of good standing of the opinion Buyer and the Transitory Subsidiary in their jurisdiction of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPorganization, counsel certified charter documents, certificates as to the Company, dated incumbency of officers and the Closing Date, to adoption of authorizing resolutions) as it shall reasonably request in connection with the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) Buyer shall have effected all of the registrations, filings and notices referred to in Section 4.2 which are required on the part of Buyer, except for any which if not obtained or effected would not have a Buyer Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement; (b) the representations and warranties of Parent Buyer and Merger Sub Transitory Subsidiary set forth in the first sentence of Section 3.1 and Section 3.3 and any representations and warranties of Buyer and Transitory Subsidiary set forth in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of Buyer and Transitory Subsidiary set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time as though made on and as of the Effective Time, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date or as of the date of this Agreement (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (bc) each of Parent Buyer and Merger Sub Transitory Subsidiary shall have performed or complied with in all material respects the obligations, and complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective Time; (d) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) have a Buyer Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (e) Buyer shall have delivered to the Company a certificate (the "BUYER CERTIFICATE") to the effect that each of the conditions specified in clause (c) of Section 5.1 and clauses (a) through (d) (insofar as clause (d) relates to Legal Proceedings involving Buyer) of this Section 5.3 is satisfied in all respects; (f) the Company shall have received the opinion such other certificates and instruments (including without limitation certificates of Xxxxxxx Xxxxxxx & Xxxxxxxx LLPgood standing of Buyer and Transitory Subsidiary in their jurisdiction of organization, counsel certified charter documents, certificates as to the Company, dated incumbency of officers and the Closing Date, to adoption of authorizing resolutions) as it shall reasonably request in connection with the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;Closing. (dg) the Company shall have received certificates of from counsel to Buyer an executive officer of each of Parent and Merger Sub, certifying that opinion with respect to the conditions matters set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior EXHIBIT H attached hereto, addressed to the Effective Time under Company and dated as of the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing Date.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger shall be further under this Agreement are additionally subject to the satisfaction of or written waiver at or prior to by the Effective Time Company of each of the following conditionsconditions on or before the Closing Date, any of which may be waived by the Company in writing and each of which shall be considered properly performed if no notice to the contrary has been provided to the NSDirect Interest Holders and Tecce in writing by the close of any contingency time set forth in thix xxxtion: (a) the representations Company shall have received funding from the Company's investors in an amount sufficient to complete this transaction. If the Company has not received a firm commitment from its investors at least ten (10) days prior to the scheduled Closing Date, then the Company must give written notice to the NSDirect Interest Holders and warranties of Parent and Merger Sub set forth in Tecce whether the Company elects to cancel this Agreement shall be true and correct in all material respectsor proceed tx Xxxsing without the financing. However, in each case as of date of if no written notice is received then this Agreement is terminated and as none of the Effective Time as though made on and as of such date (unless parties hereto has 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 in all material respects as of such specified date)continuing obligation to any other party hereto; (b) each of Parent and Merger Sub there shall have performed been no material change in all material respects the obligationsBusiness of NSDirect between the date hereof and the Closing Date; (c) prior to the Closing of this transaction, Nutri/System L.P. shall have executed and delivered an Asset Purchase Agreement to Company, a copy of which is attached hereto as Exhibit "E" (the "Asset Purchase Agreement"), and complied in there shall be no remaining conditions to Company's obligation to Close under the Asset Purchase Agreement; (d) prior to the Closing Date, the Company shall be entitled, through its employees and representatives, to satisfactorily complete such investigations of the property and such examination of the books, records and financial condition of NSDirect as the Company may reasonably request. In order that the Company may have the full opportunity to do so, NSDirect and the NSDirect Interest Holders shall furnish the Company and its representatives during such period with all material respects such information concerning the affairs of NSDirect as the Company or such representatives may reasonably request and cause NSDirect's officers, employees, consultants, agents, accountants and attorneys to cooperate fully with the Company or such representatives in connection with such review and examination and to make full disclosure of all information and documents requested by the Company and/or such representatives. Any such investigations and examinations shall be conducted at reasonable times and under reasonable circumstances. (e) All covenants, agreements and covenants, required conditions contained in this Agreement to be performed by or complied with by it under this Agreement NSDirect and NSDirect Interest Holders at or prior to the Effective Time; (c) the Company Closing shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth been performed or complied with in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofmaterial respects.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect the Merger contemplated by this Agreement shall be further subject to the satisfaction or waiver at or prior to the Effective Time by Xxxx of the following conditionsconditions precedent on and as of the Commencement Date: (a) Xxxx shall have duly executed the Company Inventory Sales Agreement in form and substance satisfactory to the Company; (b) Xxxx shall have duly executed the Existing Supplier/Offtaker Inventory Sales Agreement; (c) Xxxx shall have duly executed the Storage Facilities Agreement in form and in substance satisfactory to the Company; (d) Xxxx shall have duly executed the Marketing and Sales Agreement in form and in substance satisfactory to the Company; (e) Xxxx shall have duly executed the Agency Agreement in form and in substance satisfactory to the Company; (f) Xxxx shall have agreed to the form of the Step-Out Inventory Sales Agreement in form and in substance satisfactory to the Company; (g) Xxxx shall have duly executed the Fee Letter; (h) Xxxx shall have duly executed the Master Netting Agreement; (i) Xxxx shall have executed the Lien Documents to the extent its signature is required thereunder; (j) All representations and warranties of Parent and Merger Sub set forth Xxxx contained in this Agreement the Transaction Documents shall be true and correct in all material respects, in each case as of date of this Agreement on and as of the Effective Time as though made on and as of such date (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 in all material respects as of such specified date)Commencement Date; (bk) each of Parent and Merger Sub Xxxx shall have performed in complied with all material respects the obligations, covenants and complied in all material respects with the agreements and covenants, hereunder that it is required to be performed by comply with on or complied with by it under this Agreement at or prior to before the Effective TimeCommencement Date; (cl) the Company Xxxx shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Company, dated the Closing Date, to the effect that the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel delivered to the Company shall such other certificates, documents and instruments as may be entitled reasonably necessary to rely upon customary representations and assumptions provided by consummate the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant; (d) the Company shall have received certificates of an executive officer of each of Parent and Merger Sub, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfiedtransactions contemplated herein; and (em) Parent Xxxx shall have performed all delivered satisfactory evidence of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereoffederal form 637 license.

Conditions to Obligations of the Company. The obligation obligations of the Company to effect consummate, or cause to be consummated, the Merger shall be further transactions contemplated by this Agreement are subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions, any one or more of which may be waived in writing by the Company: (ai) Each of the representations and warranties of Parent and Merger Sub set forth the Contributors contained in this Agreement shall be true and correct in all material respects, in each case respects as of date of this Agreement the Closing Date, as if made anew at and as of the Effective Time that time, except with respect to representations and warranties which speak as though made on and as of such date (unless any such representation or warranty is made only as of a specific to an earlier date, in which event such representation representations and warranty warranties shall be true and correct in all material respects at and as of such specified date);. (b) each Each of Parent and Merger Sub the covenants herein of the Contributors to be performed as of or prior to the Closing shall have been performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it under this Agreement at or prior to the Effective Time;respects. (c) Each Contributor shall have delivered to the Company shall have received the opinion a certificate signed by an executive officer of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Companysuch Contributor, dated the Closing Date, certifying that, to the effect that knowledge and belief of such officer, the Merger will be treated for United States federal income tax purposes as a reorganization within the meaning of conditions specified in Section 368(a7.2(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to rely upon customary representations and assumptions provided by the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;Section 7.2(b) have been fulfilled. (d) The Contributors shall have delivered to the Company, duly executed by the applicable Contributors: (i) an assignment by the Emmis License Holder to the Company shall have received certificates of an executive officer the FCC Licenses, in the form attached hereto as Exhibit 7.2(d)(i) (the “FCC Licenses Assignment 1”); (ii) counterparts of the Xxxx of Sale and Assignment and Assumption Agreement, from each of Parent the Contributors for all Assets held by such Contributor, and Merger Subassignments of the Contributors’ rights and the assumption of the Contributor’s obligations under the Assumed Contracts, certifying that in the conditions set forth in Sections 7.3(aform attached hereto as Exhibit 7.2(d)(ii) (the “Xxxx of Sale and Section 7.3(bAssumption Agreement”); (iii) have been satisfiedduly executed counterparts of the First Amended LLC Agreement; and (eiv) Parent shall have performed all a duly executed counterpart of its obligations to be performed by it at or prior to the Effective Time under the Subordinated Debt Termination Agreement and Tax Receivable Termination Registration Rights Agreement, including in the payment of all amounts due by Parent to form attached hereto as Exhibit 7.2(d)(iv) (the relevant parties thereto pursuant to the terms thereof“Registration Agreement”).

Conditions to Obligations of the Company. The obligation of the Company to effect consummate the Merger shall be further is subject to the satisfaction or waiver at or prior to the Effective Time of the following additional conditions: (a) the Buyer, if required by the rules of The Nasdaq Stock Market, shall have filed with The Nasdaq Stock Market a Notification Form for Listing of Additional Shares with respect to the shares of Buyer Common Stock issuable in connection with the Merger; (b) the Buyer, Transitory Subsidiary and Buyer LLC shall have effected all of the registrations, filings and notices referred to in Section 4.2 that are required by each such entity; (c) the representations and warranties of Parent the Buyer, the Transitory Subsidiary and Merger Sub Buyer LLC set forth in the first sentence of Section 3.1 and in Section 3.3 and any representations and warranties of the Buyer, the Transitory Subsidiary and Buyer LLC set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Buyer, the Transitory Subsidiary and Buyer LLC set forth in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Effective Time Closing as though made on and as of the Closing, except to the extent such date (unless any such representation or warranty is representations and warranties are specifically made only as of a specific date, particular date (in which event case such representation representations and warranty warranties shall be true and correct in all material respects as of such specified date); (bd) each of Parent the Buyer, the Transitory Subsidiary and Merger Sub Buyer LLC shall have performed in all material respects the obligations, and or complied in all material respects with the its agreements and covenants, covenants required to be performed by or complied with by it under this Agreement at as of or prior to the Effective TimeClosing; (ce) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, award, stipulation or injunction would reasonably be expected to (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Buyer shall have delivered to the Company the Buyer Certificate; (g) the Company shall have received the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Buyer, the Buyer LLC and the Transitory Subsidiary, an opinion in substantially the form attached hereto as EXHIBIT J, addressed to the Company and dated as of the Closing Date; (h) the Company shall have received an opinion from Xxxxxx & Whitney LLP, in a form reasonably satisfactory to the Company, dated the Closing Date, to the effect that the Merger will be treated and the Final Merger, considered together as a single integrated transaction for United States federal income tax purposes purposes, will qualify as a reorganization "reorganization" within the meaning of Section 368(a) of the Code. In ; in rendering such opinion, counsel to Xxxxxx & Xxxxxxx LLP may require and rely upon representation letters of the Buyer, the Transitory Subsidiary, the Buyer LLC and the Company in such form as is reasonably acceptable to Xxxxxx & Whitney LLP; and the Company Shareholders shall be entitled to rely upon customary representations and assumptions provided by on the Company, Merger Sub and Parent that counsel to the Company reasonably deems relevant;foregoing opinion; and (di) the Company shall have received such other certificates and instruments (including certificates of an executive officer good standing of each the Buyer, the Transitory Subsidiary and Buyer LLC in their jurisdiction of Parent and Merger Suborganization, certifying that the conditions set forth in Sections 7.3(a) and Section 7.3(b) have been satisfied; and (e) Parent shall have performed all of its obligations to be performed by it at certified charter or prior organizational documents, certificates as to the Effective Time under incumbency of officers and the Subordinated Debt Termination Agreement and Tax Receivable Termination Agreement, including adoption of authorizing resolutions) as it shall reasonably request in connection with the payment of all amounts due by Parent to the relevant parties thereto pursuant to the terms thereofClosing.