Common use of Conditions to the Obligations of Buyer and Merger Subs Clause in Contracts

Conditions to the Obligations of Buyer and Merger Subs. The obligations of Buyer and Merger Subs to consummate, or cause to be consummated, the First Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Bxxxx and Merger Subs: (i) The representations and warranties of the Company in this Agreement (other than the Fundamental Representations of the Company) shall be true and correct (without giving regard to any qualifications or limitations as to “materiality” or “Material Adverse Effect”, and words of similar import set forth therein, other than with respect to Section 4.23(a)) in all respects as of the date of this Agreement and at and as of the Closing with the same effect as though made at and as of such time, except where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effect and (b) the Fundamental Representations of the Company will be true and correct in all respects (other than Fundamental Representations of the Company set forth in Section 4.6 or Section 4.24, which will be true and correct in all but de minimis respects) as of the date of this Agreement and at and as of the Closing with the same effect as though made at and as of such time; provided, however, that representations and warranties that are made as of a particular date or period will be true and correct (in the manner set forth above) only as of such date or period. (b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects. (c) The Company shall have delivered to Buyer a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that the conditions specified in Section 9.1(a), Section 9.1(b) and Section 9.1(d) have been fulfilled (the “Closing Certificate”). (d) Since the date of this Agreement, there shall have not have occurred a Material Adverse Effect on the Company. (e) No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which prohibits, restrains, enjoins or makes illegal the consummation of the Merger, and there shall not be any threatened, instituted or pending action by a Governmental Authority seeking to prohibit, restrain or enjoin the consummation of the Merger or other transactions under this Agreement. (f) The Merger Consent shall have been validly obtained. (g) The Reverse Split shall have been effected. (h) The Company shall have used reasonable best efforts to obtain completed and signed Investor Questionnaires from each Company Stockholder and shall have delivered all such Investor Questionnaires to Buyer; Buyer shall have no reason to believe that the statements set forth in the Investor Questionnaires are not true; and Buyer shall be reasonably satisfied that the issuance of the Buyer Ordinary Shares pursuant to this Agreement is exempt from the registration requirements of the Securities Act. (i) There shall be no more than 27 Company Stockholders that are not Accredited Investors. (j) The aggregate number of Dissenting Shares, together with the shares of Company Capital Stock eligible to become Dissenting Shares, shall not exceed two percent (2%) of the number of outstanding shares of Company Capital Stock as of the First Effective Time (calculated after giving effect to the conversion into shares of Company Common Stock of all outstanding shares of Company Preferred Stock). (k) Buyer shall have received copies of Written Consents evidencing the receipt of the Merger Consent. (l) Buyer shall have received the items contemplated to be delivered by the Company in accordance with Section 3.4. (m) The aggregate amount of the Closing Indebtedness Amount, together with all Excess Transaction Expenses, to be paid by Buyer pursuant to Section 3.5 shall not exceed $500,000. (n) The Company shall have delivered to Buyer a signed certification that the shares of Company Capital Stock are not United States real property interests as defined in Section 897(c) of the Code, together with a notice to the IRS (which shall be filed by Buyer with the IRS following the Closing), in accordance with the Treasury Regulations under Sections 897 and 1445 of the Code. (o) Buyer shall have received duly executed counterparts to the CVR Agreement from the other parties thereto. (p) Bxxxx shall have received duly executed copies of each Option Acknowledgment Agreement executed by all holders of outstanding Company Options. (q) Buyer shall have received such other certificates and instruments (including certificates of good standing of the Company and its Subsidiaries in their respective jurisdictions of organization) as it shall reasonably request in connection with the Closing.

Conditions to the Obligations of Buyer and Merger Subs. The obligations of Buyer and Merger Subs to consummate, or cause to be consummated, the First Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Bxxxx Buyer and Merger Subs: (ia) The Each of the Fundamental Representations of the Company shall be true and correct in all material respects as of the date hereof and as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for any changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement; and each of the other representations and warranties of the Company contained in this Agreement (other than the Fundamental Representations of the Company) Article IV, disregarding all qualifications contained herein relating to materiality or Material Adverse Effect, shall be true and correct (without giving regard to any qualifications or limitations as to “materiality” or “Material Adverse Effect”, and words of similar import set forth therein, other than with respect to Section 4.23(a)) in all respects as of the date of this Agreement and at hereof and as of the Closing Date, as if made anew at and as of that date, except with the same effect respect to representations and warranties which speak as though made to an earlier date, which representations and warranties shall be true and correct at and as of such timedate, except where the failure to be true and correct for (i) any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect on the Company and (bii) the Fundamental Representations of the Company will be true and correct in all respects (other than Fundamental Representations of the Company set forth in Section 4.6 or Section 4.24, which will be true and correct in all but de minimis respects) as of any changes after the date of this Agreement and at and as of the Closing with the same effect as though made at and as of such time; provided, however, that representations and warranties that which are made as of a particular date contemplated or period will be true and correct (in the manner set forth above) only as of such date or periodexpressly permitted by this Agreement. (b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects. (c) The Company shall have delivered to Buyer a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that the conditions specified in Section 9.1(a), Section 9.1(b9.2(a) and Section 9.1(d9.2(b) have been fulfilled (the “Closing Certificate”). (d) Since the date of this Agreement, there shall have not have occurred a Material Adverse Effect on the Company. (e) No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which prohibits, restrains, enjoins or makes illegal the consummation of the Merger, and there shall not be any threatened, instituted or pending action by a Governmental Authority seeking to prohibit, restrain or enjoin the consummation of the Merger or other transactions under this Agreement. (f) The Merger Consent shall have been validly obtained. (g) The Reverse Split shall have been effected. (h) The Company shall have used reasonable best efforts to obtain completed and signed Investor Questionnaires from each Company Stockholder and shall have delivered all such Investor Questionnaires to Buyer; Buyer shall have no reason to believe that the statements set forth in the Investor Questionnaires are not true; and Buyer shall be reasonably satisfied that the issuance of the Buyer Ordinary Shares pursuant to this Agreement is exempt from the registration requirements of the Securities Act. (i) There shall be no more than 27 Company Stockholders that are not Accredited Investors. (j) The aggregate number of Dissenting Shares, together with the shares of Company Capital Stock eligible to become Dissenting Shares, held by Cash-Out Holders shall not exceed two fifteen percent (215%) of the number of outstanding shares of Company Capital Stock as of the First Effective Time (calculated after giving effect to the conversion into shares of Company Common Stock of all outstanding shares of Company Series A Preferred Stock, Company Options and Company Warrants) and there shall be no more than 35 Pre-Closing Holders that are not Accredited Investors. (f) The aggregate number of (i) Dissenting Shares shall not exceed five percent (5%) and (ii) Dissenting Shares, together with shares of Company Capital Stock eligible to become Dissenting Shares, shall not exceed fifteen percent (15%), in each case, of the number of outstanding shares of Company Capital Stock as of the Effective Time (calculated after giving effect to the conversion into shares of Company Common Stock of all outstanding shares of Company Series A Preferred Stock, Company Options and Company Warrants). (k) Buyer shall have received copies of Written Consents evidencing the receipt of the Merger Consent. (l) Buyer shall have received the items contemplated to be delivered by the Company in accordance with Section 3.4. (mg) The aggregate amount Estimated Closing Cash Amount shall be equal to or greater than the sum of (i) the Estimated Closing Indebtedness Amount, together with all Amount and (ii) the Estimated Excess Transaction Expenses, to be paid by Buyer in each case as reflected on the estimated Closing Balance Sheet delivered pursuant to Section 3.5 shall not exceed $500,0003.3. (nh) The Company shall have delivered to Buyer a signed certification that the shares of Company Capital Stock are not United States real property interests as defined in Section 897(c) of the Code, together with a notice to the IRS (which shall be filed by Buyer with the IRS following the Closing), certificate in accordance with the requirements of Treasury Regulations under Sections 897 1.897-2(h) and 1445 of the Code1.1445-2(c)(3). (o) Buyer shall have received duly executed counterparts to the CVR Agreement from the other parties thereto. (p) Bxxxx shall have received duly executed copies of each Option Acknowledgment Agreement executed by all holders of outstanding Company Options. (q) Buyer shall have received such other certificates and instruments (including certificates of good standing of the Company and its Subsidiaries in their respective jurisdictions of organization) as it shall reasonably request in connection with the Closing.

Conditions to the Obligations of Buyer and Merger Subs. The obligations of Buyer and Merger Subs to consummate, or cause to be consummated, the First Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Bxxxx and Merger Subs: (i) The representations and warranties of the Company in this Agreement (other than the Fundamental Representations of the Company) shall be true and correct (without giving regard to any qualifications or limitations as to “materiality” or “Material Adverse Effect”, and words of similar import set forth therein, other than with respect to Section 4.23(a‎4.23(a)) in all respects as of the date of this Agreement and at and as of the Closing with the same effect as though made at and as of such time, except where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effect and (b) the Fundamental Representations of the Company will be true and correct in all respects (other than Fundamental Representations of the Company set forth in Section 4.6 ‎4.6 or Section 4.24‎4.24, which will be true and correct in all but de minimis respects) as of the date of this Agreement and at and as of the Closing with the same effect as though made at and as of such time; provided, however, that representations and warranties that are made as of a particular date or period will be true and correct (in the manner set forth above) only as of such date or period. (b) Each of the covenants of the Company to be performed at or prior to the Closing shall have been performed in all material respects. (c) The Company shall have delivered to Buyer a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that the conditions specified in Section 9.1(a‎9.1(a), Section 9.1(b‎9.1(b) and Section 9.1(d‎9.1(d) have been fulfilled (the “Closing Certificate”). (d) Since the date of this Agreement, there shall have not have occurred a Material Adverse Effect on the Company. (e) No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which prohibits, restrains, enjoins or makes illegal the consummation of the Merger, and there shall not be any threatened, instituted or pending action by a Governmental Authority seeking to prohibit, restrain or enjoin the consummation of the Merger or other transactions under this Agreement. (f) The Merger Consent shall have been validly obtained. (g) The Reverse Split shall have been effected. (h) The Company shall have used reasonable best efforts to obtain completed and signed Investor Questionnaires from each Company Stockholder and shall have delivered all such Investor Questionnaires to Buyer; Buyer shall have no reason to believe that the statements set forth in the Investor Questionnaires are not true; and Buyer shall be reasonably satisfied that the issuance of the Buyer Ordinary Shares pursuant to this Agreement is exempt from the registration requirements of the Securities Act. (i) There shall be no more than 27 Company Stockholders that are not Accredited Investors. (j) The aggregate number of Dissenting Shares, together with the shares of Company Capital Stock eligible to become Dissenting Shares, shall not exceed two percent (2%) of the number of outstanding shares of Company Capital Stock as of the First Effective Time (calculated after giving effect to the conversion into shares of Company Common Stock of all outstanding shares of Company Preferred Stock). (k) Buyer shall have received copies of Written Consents evidencing the receipt of the Merger Consent. (l) Buyer shall have received the items contemplated to be delivered by the Company in accordance with Section 3.4‎3.4. (m) The aggregate amount of the Closing Indebtedness Amount, together with all Excess Transaction Expenses, to be paid by Buyer pursuant to Section 3.5 ‎3.5 shall not exceed $500,000. (n) The Company shall have delivered to Buyer a signed certification that the shares of Company Capital Stock are not United States real property interests as defined in Section 897(c) of the Code, together with a notice to the IRS (which shall be filed by Buyer with the IRS following the Closing), in accordance with the Treasury Regulations under Sections 897 and 1445 of the Code. (o) Buyer shall have received duly executed counterparts to the CVR Agreement from the other parties thereto. (p) Bxxxx shall have received duly executed copies of each Option Acknowledgment Agreement executed by all holders of outstanding Company Options. (q) Buyer shall have received such other certificates and instruments (including certificates of good standing of the Company and its Subsidiaries in their respective jurisdictions of organization) as it shall reasonably request in connection with the Closing.