Common use of Conditions to the Obligation of the Purchasers Clause in Contracts

Conditions to the Obligation of the Purchasers. To Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent: (a) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.1(a)). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The purchase of and payment for the Securities by the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (f) The Purchasers shall have received a legal opinion from counsel to the Company in the form attached hereto as Exhibit C. (g) The Purchasers shall have received a certificate executed by the chief executive officer and the chief financial or accounting officer of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Purchasers, to the effect that (i) the representations and warranties of the Company set forth in Section 3 of this Agreement are true and correct as of the Closing Date and (ii) the Company has complied in all material respects with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing Date. (h) The Purchasers shall have received a certificate executed by the secretary of the Company, dated the Closing Date, certifying as to the authenticity and effectiveness of the actions of the Company's Board of Directors in approving the transactions contemplated hereby and the validity of the Restated Certificate and the Bylaws. (i) The Company shall have executed and delivered a definitive Purchase Agreement (the "Notes Purchase Agreement") related to the offer and sale of Convertible Notes for aggregate proceeds to the Company of not less than $75,000,000. (j) The Company shall have increased the size of its board of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx to the directorship created by such increase.

Conditions to the Obligation of the Purchasers. To Consummate the Closing. The obligation several obligations of each Purchaser to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Securities being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction or waiver of the following conditions precedent: (a) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser thatthat for purposes of this Section 6.1(a), in the case of any representation and warranty of the Company contained herein (i) which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy or (ii) which is made as to of a specific date, such representation or and warranty the condition precedent set forth in the foregoing provisions need be true and correct only as of this Section 5.1(a)such specific date). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (dc) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or delay the Closing, Each Purchaser shall have received a certificate, dated the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in the foregoing Sections 6.1(a) and (b) have been instituted before any court, arbitrator or governmental body, agency or official and shall be pendingfulfilled. (ed) The purchase of and payment for the Securities by the Purchasers each Purchaser shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect . (e) The Company shall have furnished all required materials to any the Transfer Agent to reflect the issuance of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effectSecurities at the Closing. (f) The Purchasers Company shall have received a legal opinion from counsel to executed and delivered the Company Registration Rights Agreement in the form attached hereto as Exhibit C.B (the “Registration Rights Agreement”) to the Purchasers. (g) The Purchasers shall have received a certificate executed by the chief executive officer and the chief financial or accounting officer of from counsel to the Company, dated an opinion substantially in the Closing Date, in form and substance reasonably satisfactory to the Purchasers, to the effect that (i) the representations and warranties of the Company set forth in Section 3 of this Agreement are true and correct attached as of the Closing Date and (ii) the Company has complied in all material respects with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing DateExhibit C hereto. (h) The Purchasers Securities shall have received a certificate executed by been approved for listing on the secretary Nasdaq Global Market, subject to official notice of the Company, dated the Closing Date, certifying as to the authenticity and effectiveness of the actions of the Company's Board of Directors in approving the transactions contemplated hereby and the validity of the Restated Certificate and the Bylaws.issuance (i) The Bosun S. Xxx shall have been elected to the Board of Directors and the Company shall have executed entered into an indemnification agreement with Mx. Xxx in a form satisfactory to Sailing and delivered a definitive Purchase Agreement (the "Notes Purchase Agreement") related to the offer and sale of Convertible Notes for aggregate proceeds to the Company of not less than $75,000,000Mx. Xxx. (j) The Company shall have increased the size of its board of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx to the directorship created by such increase.

Conditions to the Obligation of the Purchasers. To Consummate The obligations of the Closing. The obligation of each Purchaser Purchasers to consummate effect the Closing and to purchase and pay for the Securities being purchased by it pursuant to this Agreement is subject to the satisfaction or waiver of the following additional conditions precedenton the Closing Date: (a) The All representations and warranties of the Company Seller contained herein in this Agreement which are not qualified as to materiality shall be true and correct on in all material respects, and all representations and warranties contained in this Agreement which are so qualified as of the Closing Date to materiality shall be true and correct (in each case with the same force and effect as though if such representations and warranties were made on anew at and as of the Closing Date Date, except (it being understood i) to the extent that such representations and agreed warranties are by each Purchaser thattheir express provisions made as of the date of this Agreement or another specified date, in and (ii) for the case effect of any representation and warranty of activities or transactions which may have taken place after the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions date of this Section 5.1(aAgreement which are contemplated by this Agreement)).; (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The purchase of and payment for the Securities by the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (f) The Purchasers shall have received a legal opinion from counsel to the Company in the form attached hereto as Exhibit C. (g) The Purchasers shall have received a certificate executed of the Seller to the foregoing effect; (c) All agreements, covenants and obligations required by the chief executive officer and the chief financial or accounting officer of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Purchasers, to the effect that (i) the representations and warranties of the Company set forth in Section 3 terms of this Agreement are true to be performed and correct as of complied with by the Seller on or before the Closing Date and (ii) the Company has shall have been so performed or complied with in all material respects with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing Date.respects; (hd) The Purchasers shall have received a certificate executed copies of the Fund Agreement and the Operative Documents related to the Seller LLC Interest being sold at the Closing, and such other instruments of sale, transfer, conveyance and assignment as are necessary to effect the transfer of the Seller LLC Interest to be transferred at the Closing and the Purchasers shall, upon consummation of and subject to the Closing, have been granted the same or similar rights as the Fund Agreement and the Operative Documents provided the Seller with respect to the Seller LLC Interest; and (e) The Purchasers shall have received an updated Exhibit A attached hereto, updated to reflect all Distributions and Capital Contributions related to the Seller LLC Interest being sold at the Closing made during the period commencing on the Account Balance Date and ending on the Closing Date (including without limitation any such Distributions and Capital Contributions made after the date hereof and prior to the Closing), and all management fees and expenses paid prior to the Closing by the secretary of the Company, dated the Closing Date, certifying as Seller related to the authenticity and effectiveness of Seller LLC Interest being sold at the actions of Closing, in advance prior to the Company's Board of Directors in approving Account Balance Date with respect to management services rendered or to be rendered after the transactions contemplated hereby and the validity of the Restated Certificate and the BylawsAccount Balance Date. (if) The Company Fund Agreement shall have executed be amended and delivered a definitive Purchase Agreement (the "Notes Purchase Agreement") related to the offer and sale of Convertible Notes for aggregate proceeds to the Company of not less than $75,000,000restated in its entirety as set forth on Exhibit C attached hereto. (j) The Company shall have increased the size of its board of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx to the directorship created by such increase.

Conditions to the Obligation of the Purchasers. To to Consummate the each Closing. The obligation of each Purchaser to consummate the transactions to be consummated at a Closing and to purchase and pay for the Securities Shares being purchased by it at such Closing pursuant to this Agreement is subject to the satisfaction of the following conditions precedent: (a) The representations and warranties contained herein of the Company contained herein shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein (i) which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.1(a6.1 (a) or (ii) which is made as of a specific date, such representation and warranty need be true and correct only as of such specific date in order to satisfy as to such representation and warranty the condition precedent set forth in the foregoing provisions of this Section 6.1(a)), provided, however, .that the occurrence of any event or circumstance specified on Schedule 6.1(a) hereto between the date hereof and the applicable Closing Date shall not be deemed to result in any representation or warranty in this Agreement being untrue or incorrect on and as of such Closing Date. (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the such Closing Date. (c) The Purchasers shall have received a certificate, dated such Closing Date, signed by each of the President and the Chief Financial Officer of the Company, certifying on behalf of the Company, that the conditions specified in the foregoing Sections 6.1(a) and (b) have been fulfilled. (d) No proceeding challenging this The Registration Rights Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official executed and shall be pendingdelivered by the Company. (e) The purchase of and payment for the Securities Shares by the Purchasers shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (f) The Purchasers shall have received a legal from the Company's counsel, Xxxx and Xxxx LLP, an opinion from counsel to the Company substantially in the form attached hereto as Exhibit C.of EXHIBIT D hereto. (g) The Purchasers All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at such Closing shall have received a certificate executed by the chief executive officer and the chief financial or accounting officer of the Company, dated the Closing Date, be reasonably satisfactory in form and substance reasonably satisfactory to the PurchasersPurchasers and their counsel, to Xxxxxxx Xxxx & Xxxxxxxxx, and the effect that Purchasers and their counsel shall have received copies (iexecuted or certified, as may be appropriate) of all documents which the representations and warranties of the Company set forth Purchasers or their counsel may have reasonably requested in Section 3 of this Agreement are true and correct as of the Closing Date and (ii) the Company has complied in all material respects connection with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing Datetransactions. (h) The Purchasers waiting period under the HSR Act shall have received a certificate executed by the secretary of the Company, dated the Closing Date, certifying as to the authenticity and effectiveness of the actions of the Company's Board of Directors in approving the transactions contemplated hereby and the validity of the Restated Certificate and the Bylawsexpired or been terminated. (i) The Company Certificate of Designation shall have executed and delivered a definitive Purchase Agreement (the "Notes Purchase Agreement") related to the offer and sale of Convertible Notes for aggregate proceeds to been filed by the Company with the Secretary of not less than $75,000,000State of the State of Delaware. (j) In the case of the Second Closing, the Common Stock Charter Amendment shall have been approved by the Company's stockholders and filed by the Company with the Secretary of State of the State of Delaware. (k) The Company shall have increased filed an Additional Listing Application with the size Nasdaq National Market for the shares of its board Common Stock to be issued upon conversion of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx to the directorship created by Shares purchased at such increaseClosing.

Conditions to the Obligation of the Purchasers. To Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Securities being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent: (a) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.1(a)). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The purchase of and payment for the Securities by the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (f) The Purchasers shall have received a legal opinion from counsel to the Company in the form attached hereto as Exhibit C. (g) The Purchasers shall have received a certificate executed by the chief executive officer and the chief financial or accounting officer of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Purchasers, to the effect that (i) the representations and warranties of the Company set forth in Section 3 of this Agreement are true and correct as of the Closing Date and (ii) the Company has complied in all material respects with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing Date. (h) The Purchasers shall have received a certificate executed by the secretary of the Company, dated the Closing Date, certifying as to the authenticity and effectiveness of the actions of the Company's Board of Directors in approving the transactions contemplated hereby and the validity of the Restated Certificate and the Bylaws. (i) The Company Purchasers shall have executed the Agreement for the purchase of at least $25 million of Securities, and delivered a definitive Purchase Agreement (the "Notes Purchase Agreement") related to the offer and sale of Convertible Notes for aggregate proceeds to the Company of not less than $75,000,000. (j) The Company each Purchaser shall have increased purchased, in accordance with this Agreement, the size number of Shares and Warrants set forth opposite his, her or its board of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx to the directorship created by such increase.name on Exhibit A.

Conditions to the Obligation of the Purchasers. To Consummate The obligations of the Closing. The obligation of each Purchaser Purchasers to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Securities being purchased by it them at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction or waiver of the following conditions precedent: (a) The representations and warranties contained herein of the Company contained herein shall be true and correct on and as of the Closing Date Date, with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser the Purchasers that, in the case of any representation and warranty of the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.1(a)respects). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (dc) No proceeding challenging this Agreement The Purchasers shall have received a certificate, dated the Closing Date and signed by the Chief Executive Officer or the transactions contemplated herebyChief Financial Officer of the Company, or seeking to prohibit, alter, prevent or delay certifying on behalf of the Closing, shall Company that the conditions specified in the foregoing Sections 6.1(a) and (b) have been instituted before any court, arbitrator or governmental body, agency or official and shall be pendingfulfilled. (ed) The purchase of and payment for the Securities Notes and the Firm Shares by the Purchasers shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents. (e) The Company and the Trustee shall have executed and delivered the Indenture to the Purchasers and the Company shall have executed and delivered the Notes and issued and delivered the Firm Shares to the Purchasers. (f) The Company shall have executed and delivered the Registration Rights Agreement in substantially the form attached hereto as Exhibit B to the Purchasers. (g) The Purchasers shall have received from Xxxxxx & Xxxxxx LLP, approvalscounsel to the Company, licensesan opinion covering the matters set forth on Exhibit D in form and substance reasonably satisfactory to the Purchasers. (h) The Purchasers shall have received from Xxxxxx & Xxxxxx LLP, permitscounsel to the Company, orders an opinion covering collateral matters in form and authorizations ofsubstance reasonably satisfactory to the Purchasers. (i) The Purchasers shall have received from Hall, Estill, Hardwick, Gable, Golden & Xxxxxx, P.C., local Oklahoma counsel to the Company, an opinion in form and substance reasonably satisfactory to the Purchasers. (j) The Company shall have caused each person listed on Schedule I hereto to furnish to the Purchasers a letter agreement in substantially the form attached hereto as Exhibit E. (k) On or registrationsprior to the Closing, declarations and filings with, any governmental or administrative agency with respect to any each of the transactions contemplated hereby conditions to the effectiveness of the Credit Agreement shall have been duly obtained satisfied or made waived (other than the concurrent issuance of the Notes and the Firm Shares hereunder), the Company shall have delivered to the Purchasers counterparts to the Credit Agreement executed by the Company and the Subsidiaries of the Company party thereto and the Credit Agreement shall be in full force and effect. (f) The Purchasers shall have received a legal opinion from counsel to the Company in the form attached hereto as Exhibit C. (g) The Purchasers shall have received a certificate executed by the chief executive officer and the chief financial or accounting officer of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Purchasers, to the effect that (i) the representations and warranties of the Company set forth in Section 3 of this Agreement are true and correct as of the Closing Date and (ii) the Company has complied in all material respects with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing Date. (h) The Purchasers shall have received a certificate executed by the secretary of the Company, dated the Closing Date, certifying as to the authenticity and effectiveness of the actions of the Company's Board of Directors in approving the transactions contemplated hereby and the validity of the Restated Certificate and the Bylaws. (il) The Company shall have executed taken all actions required to call for redemption and delivered a definitive Purchase Agreement (to satisfy and discharge the "Senior Secured Notes Purchase Agreement") related to substantially simultaneously with the offer and sale of Convertible Notes for aggregate proceeds to the Company of not less than $75,000,000Closing. (jm) The Collateral Agent shall have received (i) the Security Agreement, together with such other assignments, conveyances, amendments, agreements and other writings, including UCC-1 financing statements, necessary to create first priority Liens (as defined in the Indenture), subject in priority only to Permitted Prior Liens (as defined in the Indenture), in all of the Collateral in which a security interest is required to be granted in favor of the Collateral Agent pursuant to the Security Instruments, including all of the Equity Interests (as defined in the Indenture) of each Subsidiary now or hereafter owned by the Company or any Subsidiary, (ii) a Mortgage covering each of the Mortgaged Properties, (iii) each Control Agreement and (iv) the Intercreditor Agreement. (n) The Purchasers and their counsel shall be reasonably satisfied that there are no Liens (as defined in the Indenture) on the Collateral other than Permitted Liens (as defined in the Indenture). (o) The Closing shall occur no earlier than the date that is fifteen (15) business days following the date of this Agreement and notice thereof shall be provided to the Purchasers no earlier than the date of this Agreement. (p) The transactions contemplated hereby (including the issuance of Common Stock upon conversion of the Notes and any acquisition of Common Stock pursuant to Section 5.10) shall have been approved by the Board of Directors for purposes of Section 203 of the Delaware General Corporation Law in a manner acceptable to the Purchasers. (q) The Company shall have increased the size of its board of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx taken all action necessary, in a manner acceptable to the directorship created by Purchasers, such increasethat the transactions contemplated hereby (including the issuance of Common Stock upon conversion of the Notes and any acquisition of Common Stock pursuant to Section 5.10) will not cause any holder of any capital stock, or any rights to acquire capital stock, of the Company to acquire an exercisable right to acquire any preferred stock of the Company (including pursuant to that certain Rights Agreement, dated as of January 27, 2017, between the Company and American Stock Transfer & Trust Company, LLC, as rights agent, as the same may be amended or replaced from time to time).

Conditions to the Obligation of the Purchasers. To Consummate The obligations of the Closing. The obligation of each Purchaser Purchasers to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Securities Notes being purchased by it them at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction or waiver of the following conditions precedent: (a) The representations and warranties of the Company contained in Section 3.1, Section 3.4, Section 3.5, Section 3.6(i), Section 3.13 and Section 3.14 herein shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser thatthe Purchasers that for purposes of this Section 6.1(a), in the case of any representation and warranty of the Company contained herein (i) which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy or (ii) which is made as to of a specific date, such representation or and warranty the condition precedent set forth in the foregoing provisions need be true and correct only as of this Section 5.1(a)such specific date). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The purchase of and payment for the Securities Notes by the Purchasers shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (fc) The Purchasers Company and the Trustee shall have received a legal opinion from counsel executed and delivered the Indenture to the Purchasers and the Company in the form attached hereto as Exhibit C. (g) The Purchasers shall have received a certificate executed by and delivered the chief executive officer and the chief financial or accounting officer of the Company, dated the Closing Date, in form and substance reasonably satisfactory Notes to the Purchasers, to the effect that (i) the representations and warranties of the Company set forth in Section 3 of this Agreement are true and correct as of the Closing Date and (ii) the Company has complied in all material respects with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing Date. (h) The Purchasers shall have received a certificate executed by the secretary of the Company, dated the Closing Date, certifying as to the authenticity and effectiveness of the actions of the Company's Board of Directors in approving the transactions contemplated hereby and the validity of the Restated Certificate and the Bylaws. (id) The Company shall have executed and delivered a definitive Purchase the Registration Rights Agreement in substantially the form attached hereto as Exhibit B (the "“Registration Rights Agreement”) to the Purchasers. (e) The Purchasers shall have received from Xxxxxx & Xxxxxxx XXX, United States counsel to the Company, a customary opinion concerning the matters set forth on Exhibit C. (f) If the Acquisition is consummated pursuant to the Offer, the Offer shall have been consummated, or substantially simultaneously with the issuance and sale of the Notes Purchase Agreement"shall be consummated, in all material respects in accordance with the terms of the Offer Documents, and the Offer Documents shall include the terms and conditions set forth in the Signing Date Offer Documents as may be amended, modified or waived, but without giving effect to any (A) related modifications or amendments thereof or (B) express waivers by Existing Broadcom, New Broadcom or Acquisition Sub of the conditions to the Offer set out in the “Conditions to the Offer” section of the Signing Date Offer Documents (the “Offer Conditions”), in each case of clauses (A) and (B) to the extent that such modifications, amendments or waivers are materially adverse to the Purchasers, in their capacities as such, without having first obtained the consent of the Required Purchasers (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that: (i) any modifications of, amendments to, or waivers of any sections or other terms of the Offer Documents from those set forth in the Signing Date Offer Documents, other than (1) modifications of the Consideration (which is addressed pursuant to Section 6.1(f)(ii)), (2) changes to the following Offer Conditions (A) the “Minimum Tender Condition”, (B) the requirement contained in the “Anti-Takeover Devices Condition” that “the Qualcomm Board shall have approved the offer and the second-step merger under Section 203 of the DGCL, or Section 203 of the DGCL shall otherwise be inapplicable to the offer and the second-step merger”, (C) the requirement that a majority of the Whole Board (as defined in Article VIII of the Target’s restated certificate of incorporation) of the Target, or if a majority of the Whole Board does not consist of Continuing Directors (as defined in Article VIII of the Target’s restated certificate of incorporation), a majority of the Continuing Directors, shall have determined, on the basis of information known to them after reasonable inquiry, that neither New Broadcom nor any of its Affiliates (as defined in Article VIII of the Target’s restated certificate of incorporation) is an Interested Stockholder or an Affiliate of an Interested Stockholder within the meaning of Article VIII of the Target’s restated certificate of incorporation, or Article VIII of the Target’s restated certificate of incorporation shall have been otherwise rendered inapplicable to the offer and the second-step merger, (D) the “Regulatory Approvals Condition”, and (E) the “No Injunction Condition” or (3) changes to or waivers of the “No Qualcomm Material Adverse Effect Condition” (which is addressed pursuant to Section 6.1(f)(iii)), shall be deemed not materially adverse to Purchasers in any respect; (ii) a modification of the consideration payable for each issued and outstanding share of Target common stock tendered in the Offer (such consideration per share, the “Consideration”) from that set forth in the Signing Date Offer Documents shall be deemed not materially adverse to the Purchasers in any respect if (1) any increase in such Consideration consists of additional shares of Common Stock or other equity consideration (other than “disqualified” equity) or (2) such modification is a reduction in the Consideration (which reduction shall be for the account of the Company); (iii) any modification, amendment to, or waiver of the “No Qualcomm Material Adverse Effect Condition” shall be deemed not materially adverse to the Purchasers in any respect if, after giving effect to such modification, amendment or waiver, such condition remains customary in all material respects for transactions of a similar nature; and (iv) to the extent that the Required Purchasers do not object in writing (and with reasonable detail as to the grounds for such objection) to any proposed (1) modification or amendment of the Offer Documents or (2) waiver of any Offer Condition, in each case within two business days of written notification to the Purchasers by Existing Broadcom, New Broadcom or Acquisition Sub of such proposed modification, amendment, or waiver, such modification, amendment or waiver shall be deemed not materially adverse to the Purchasers in any respect. (g) If the Acquisition is consummated pursuant to the One-Step Merger Agreement, the Merger shall have been consummated, or substantially simultaneously with the issuance and sale of Convertible the Notes for aggregate proceeds shall be consummated, in all material respects in accordance with the terms of the One-Step Merger Agreement, and the One-Step Merger Agreement shall include the terms and conditions set forth in the Signing Date One-Step Agreement as may be amended, modified or waived, but without giving effect to any (A) modifications or amendments thereof or (B) express waivers by Existing Broadcom, New Broadcom or Acquisition Sub of the conditions to the Merger set out in clause (a) or (b) of Section 7.2 of the Signing Date One-Step Agreement (the “One-Step Conditions”), in each case of clauses (A) and (B) to the extent that such modifications, amendments or waivers are materially adverse to the Purchasers, in their capacities as such, without having first obtained the consent of the Required Purchasers (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that: (i) any modifications of, amendments to, or waivers of any sections or other terms of the One-Step Merger Agreement from those set forth in the Signing Date One-Step Agreement, other than (1) modifications of the Merger Consideration (which is addressed pursuant to Section 6.1(g)(ii)), (2) changes to the following One-Step Conditions: (A) clauses (i) and (ii) of the “Required Antitrust Clearances” condition and (B) the “Adverse Laws or Orders” condition, (3) changes to or waivers of the “No Material Adverse Effect” condition with respect to the Target (which is addressed pursuant to Section 6.1(g)(iii)) or (4) changes to the “Xerox” lender protection provisions in the One-Step Merger Agreement from the form of One-Step Merger Agreement contained within the Signing Date One-Step Agreement that are adverse in any material respect to the Purchasers, shall be deemed not materially adverse to the Purchasers in any respect; (ii) a modification of the consideration payable for each issued and outstanding share of Target common stock in connection with the Merger (such consideration per share, the “Merger Consideration”) from that set forth in the Signing Date One-Step Agreement shall be deemed not materially adverse to the Purchasers in any respect if (1) any increase in such Merger Consideration consists of additional shares of Common Stock or other equity consideration (other than “disqualified” equity) or (2) such modification is a reduction in the Merger Consideration (which reduction shall be for the account of the Company); (iii) any modification, amendment to, or waiver of the “No Material Adverse Effect” condition with respect to the Target shall be deemed not materially adverse to the Purchasers in any respect if, after giving effect to such modification, amendment or waiver, such condition remains customary in all material respects for transactions of a similar nature; and (iv) to the extent that the Required Purchasers do not object in writing (and with reasonable detail as to the grounds for such objection) to any proposed (1) modification or amendment of the One-Step Merger Agreement or (2) waiver of any One-Step Condition, in each case within two business days of written notification to the Purchasers by Existing Broadcom, New Broadcom or Acquisition Sub of such proposed modification, amendment, or waiver, such modification, amendment or waiver shall be deemed not materially adverse to the Purchasers in any respect. (h) The Company shall receive, substantially simultaneously with the Closing, the proceeds of not less than $75,000,000the Debt Financing or any replacement thereof (or any debt financing contemplated by the Merger Agreement) in an amount sufficient (together with the proceeds from the Closing and cash on hand) to consummate the Merger or Offer, as applicable, consummated on such date. (i) The Redomiciliation shall have become effective. (j) The Company No indebtedness shall have increased be incurred to finance the size Merger or Offer, as applicable, without the consent of its board the Required Purchasers, other than (i) up to $100.0 billion under the Debt Financing (or any replacement debt financing contemplated by the Merger Agreement) and (ii) up to $6.0 billion of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx to the directorship created by such increaseNotes.

Conditions to the Obligation of the Purchasers. To Consummate The obligations of the Closing. The obligation of each Purchaser Purchasers to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Securities Notes being purchased by it at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction or waiver of the following conditions precedent: (a) The representations and warranties of the Company contained in Section 3.1, Section 3.4, Section 3.5, Section 3.6(i), Section 3.22 and Section 3.23 hereof (each a “Fundamental Representation”) herein shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser thatthe Purchasers that for purposes of this Section 6.1(a), in the case of any representation and warranty of the Company contained herein (i) which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy or (ii) which is made as to of a specific date, such representation or and warranty the condition precedent set forth in the foregoing provisions need be true and correct only as of this Section 5.1(a)such specific date). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The purchase of and payment for the Securities Notes by the Purchasers shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents, approvals, licenses, permits, orders . (c) The Company and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect to any of the transactions contemplated hereby Trustee shall have been duly obtained or made executed and delivered the Indenture to the Purchasers and the Company shall be have executed and delivered the Notes to the Purchasers. (d) The Company shall have executed and delivered the Registration Rights Agreement in full force substantially the form attached hereto as Exhibit B (the “Registration Rights Agreement”) to the Purchasers. (e) The Purchasers shall have received from Shearman & Sterling LLP, United States counsel to the Company, an opinion in form and effectsubstance reasonably satisfactory to the Purchasers concerning the matters set forth on Exhibit C-1. (f) The Purchasers shall have received a legal opinion from Xxxxxx and Xxxxxx, Cayman Islands special counsel to the Company Company, an opinion in form and substance reasonably satisfactory to the form attached hereto as Purchasers concerning the matters set forth on Exhibit C.C-2. (g) The Purchasers shall have received a certificate executed by the chief executive officer and the chief financial or accounting officer of from TransAsia Lawyers, PRC special counsel to the Company, dated the Closing Date, an opinion in form and substance reasonably satisfactory to the Purchasers, to Purchasers concerning the effect that (i) the representations and warranties of the Company matters set forth in Section 3 of this Agreement are true and correct as of the Closing Date and (ii) the Company has complied in all material respects with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing DateExhibit C-3. (h) The Purchasers shall have received a certificate executed by the secretary of the Company, dated the Closing Date, certifying as to the authenticity and effectiveness of the actions of the Company's Board of Directors in approving the transactions contemplated hereby and the validity of the Restated Certificate and the Bylaws. (i) The Company shall have executed delivered to Purchasers the written consent from Baidu, Inc., required pursuant to Section 7(9) of the US$300 Million Credit Facility Contract, dated as of February 24, 2014, by and delivered a definitive Purchase Agreement (the "Notes Purchase Agreement") related to the offer and sale of Convertible Notes for aggregate proceeds to between the Company of not less than $75,000,000. (j) The Company shall have increased the size of its board of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx to the directorship created by such increase.Baidu, Inc.

Conditions to the Obligation of the Purchasers. To Consummate The obligations of the Closing. The obligation of each Purchaser Purchasers to consummate the Closing transactions to be consummated at the Closing, and to purchase and pay for the Securities being purchased by it them at the Closing pursuant to this Agreement is Agreement, are subject to the satisfaction or waiver of the following conditions precedent: (a) The representations and warranties contained herein of the Company contained herein shall be true and correct on and as of the Closing Date Date, with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser the Purchasers that, in the case of any representation and warranty of the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.1(a)respects). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall not have suffered any Material Adverse Effect prior to the Closing Date, and the Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (dc) No proceeding challenging this Agreement The Purchasers shall have received a certificate, dated the Closing Date and signed by the Chief Executive Officer or the transactions contemplated herebyChief Financial Officer of the Company, or seeking to prohibit, alter, prevent or delay certifying on behalf of the Closing, shall Company that the conditions specified in the foregoing Sections 6.1(a) and (b) have been instituted before any court, arbitrator or governmental body, agency or official and shall be pendingfulfilled. (ed) The purchase of and payment for the Securities Notes by the Purchasers shall not be prohibited or enjoined by any law or governmental or court order or regulation. All necessary consents. (e) The Company shall have executed and delivered the Supplemental Indenture in substantially the form attached hereto as Exhibit A to the Purchasers and the Company shall have executed and delivered the Notes to the Purchasers. (f) The Company shall have executed and delivered the Registration Rights Agreement Amendment in substantially the form attached hereto as Exhibit B to the Purchasers. (g) The Purchasers shall have received from Xxxxxx & Xxxxxx LLP, approvalscounsel to the Company, licensesan opinion in substantially the form attached hereto as Exhibit D. (h) [Reserved] (i) On or prior to the Closing, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency with respect to any each of the transactions contemplated hereby conditions to the effectiveness of the Credit Agreement Amendment shall have been duly obtained satisfied or made waived, the Company shall have delivered to the Purchasers counterparts to the Credit Agreement Amendment executed by the Company and the Subsidiaries of the Company party thereto and the Credit Agreement Amendment shall be in full force and effect. (fj) The Closing shall occur no earlier than the date that is one (1) business day following the date of this Agreement and notice thereof shall be provided to the Purchasers no earlier than the date of this Agreement. (k) The transactions contemplated hereby (including the issuance of Common Stock upon conversion of the Notes) shall have received a legal opinion from counsel to the Company in the form attached hereto as Exhibit C. (g) The Purchasers shall have received a certificate executed been approved by the chief executive officer and the chief financial or accounting officer Board of Directors for purposes of Section 203 of the Company, dated the Closing Date, Delaware General Corporation Law in form and substance reasonably satisfactory a manner acceptable to the Purchasers, to the effect that (i) the representations and warranties of the Company set forth in Section 3 of this Agreement are true and correct as of the Closing Date and (ii) the Company has complied in all material respects with all the agreements and satisfied all the conditions herein on its part to be performed or satisfied on or prior to such Closing Date. (h) The Purchasers shall have received a certificate executed by the secretary of the Company, dated the Closing Date, certifying as to the authenticity and effectiveness of the actions of the Company's Board of Directors in approving the transactions contemplated hereby and the validity of the Restated Certificate and the Bylaws. (il) The Company shall have executed and delivered taken all action necessary, in a definitive Purchase Agreement (the "Notes Purchase Agreement") related manner acceptable to the offer and sale Purchasers, such that the transactions contemplated hereby (including the issuance of Convertible Notes for aggregate proceeds Common Stock upon conversion of the Notes) will not cause any holder of any capital stock, or any rights to acquire capital stock, of the Company to acquire an exercisable right to acquire any preferred stock of not less than $75,000,000the Company (including pursuant to that certain Rights Agreement, dated as of January 27, 2017, between the Company and American Stock Transfer & Trust Company, LLC, as rights agent, as the same may be amended or replaced from time to time). (j) The Company shall have increased the size of its board of directors to eight (8) directors and shall have appointed Xxxxxx X. Xxxx to the directorship created by such increase.