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

Conditions to the Obligations of Newco. The obligations of Newco to effect the Closing are subject to the satisfaction at or prior to the Closing Date of the following conditions: (a) the representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct, and the representations and warranties of the Company set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, as though made on and as of the Closing Date, except to the extent the representation or warranty is expressly limited by its terms to another date, and Newco shall have received a certificate (which certificate may be qualified by knowledge to the same extent as the representations and warranties of the Company contained herein are so qualified) signed on behalf of the Company by an executive officer of the Company to such effect; (b) each of the obligations of the Company to be performed at or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Closing Date and at the Closing the Company shall have delivered to Newco a certificate signed on behalf of the Company by an executive officer of the Company to such effect; (c) the Company shall have obtained the consent, approval or waiver of each non-governmental person whose consent, approval or waiver shall be required in order for each of them to consummate the transactions contemplated hereby, except those for which the failure to obtain such consent, approval or waiver, individually or in the aggregate, could not reasonably be expected to have a Company Material Adverse Effect; (d) Newco shall have obtained the consent, approval or waiver of each non- governmental person whose consent, approval or waiver shall be required in order for Newco to consummate the transactions contemplated hereby, except those for which the failure to obtain such consent, approval or waiver, individually or in the aggregate, could not reasonably be expected to have a Newco Material Adverse Effect; (e) each holder of shares of Company Preferred Stock issued and outstanding on the date hereof shall have entered into the Preferred Stock Agreement; (f) the Banks shall have entered into the Bank Agreement; (g) Newco shall have obtained the opinion of Xxxxxx & Bird, counsel to the Company, in the form set forth as Exhibit I hereto.

Conditions to the Obligations of Newco. The obligations of Newco to effect the Closing transactions contemplated hereby are subject to the satisfaction at or prior to the Closing Date of the following conditions: (a) each of the representations and warranties of the Company set forth Credence contained in this Agreement that are qualified as to materiality or Material Adverse Effect shall be true and correct, and the representations and warranties of the Company set forth Credence contained in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, Date as though made on and as of the Closing Date, except to the extent the representation or warranty is such representations and warranties expressly limited by its terms relate to another an earlier date, in which case as of such earlier date; (b) Credence shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date; (c) Newco shall have received a certificate (which certificate may be qualified by knowledge to the same extent certificate, dated as the representations and warranties of the Company contained herein are so qualified) Closing Date, signed on behalf of the Company by an executive a duly authorized officer of Credence certifying that the Company to such effectconditions set forth in Sections 6.3(a), (b), (c), (e) and (h) have been satisfied; (bd) each of the obligations of the Company to be performed at or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Closing Date and at the Closing the Company shall have delivered to Newco a certificate signed on behalf of the Company by an executive officer of the Company to such effect; (c) the Company shall have obtained the consent, approval or waiver of each non-governmental person whose consent, approval or waiver shall be required in order for each of them any third party consents necessary to consummate the transactions contemplated herebyhereby shall have been given, except those obtained or complied with as applicable, including the consent to the assignment of all Assumed Contracts and all consents and licenses necessary for which Newco to operate the failure Business after the Closing as operated by Credence prior to obtain such consentthe Closing; (e) there shall have been no events, approval changes or waivereffects, individually or in the aggregate, with respect to the Business having, or that could not reasonably be expected to have have, a Company Material Adverse Effect; (d) Newco shall have obtained the consent, approval or waiver of each non- governmental person whose consent, approval or waiver shall be required in order for Newco to consummate the transactions contemplated hereby, except those for which the failure to obtain such consent, approval or waiver, individually or in the aggregate, could not reasonably be expected to have a Newco Material Adverse Effect; (e) each holder of shares of Company Preferred Stock issued and outstanding Effect on the date hereof shall have entered into Business or the Preferred Stock AgreementPurchased Assets; (f) none of the Banks employees of Credence listed on Exhibit D who are designated key employees (the “Key Employees”) shall have entered into taken any action or given any indication or notice that such Key Employee does not intend to be employed by Newco following the Bank AgreementClosing (including any action to terminate, rescind or revoke the offer letter such Key Employee executed with Newco), and at least 90% of the Designated Employees who are not Key Employees shall have accepted the offer of employment Newco makes to such individual, and none of such individuals or the Key Employees shall have terminated his or her employment with Credence or advised Credence of his or her intention to do so for any reason other than pursuant to offers of employment received from Newco in connection with the transactions contemplated hereby. For purposes hereof, an individual shall only be deemed to have accepted Newco’s offer of employment if such individual executes and delivers to Newco a written instrument, in form and substance reasonably acceptable to Newco, accepting the offer of employment made to such person as approved by Newco and Newco’s standard form of proprietary information and inventions agreement, and any employment agreement or non- competition agreement between Credence and such individual shall have terminated his or her employment with Credence effective as of the Closing Date; (g) Credence shall have delivered to Newco a certificate(s) in form and substance reasonably satisfactory to Newco, duly executed and acknowledged, certifying any facts that would exempt the transactions contemplated hereby from withholding under section 1445 of the Code and the Treasury Regulations promulgated thereunder; and (h) each of the directors and officers of Hypervision and Hypervision Taiwan shall have resigned from such positions effective as of the Closing, and Newco shall have obtained the opinion of Xxxxxx & Bird, counsel to the Company, in the form set forth as Exhibit I heretobeen provided with evidence thereof.

Conditions to the Obligations of Newco. All obligations of Newco hereunder are subject to its ability to secure the Newco Financing and to thereafter acquire the Securities pursuant to the Bondholder Sale Agreements. The obligations obligation of Newco to effect the Exchange and to execute and deliver the Newco Satisfaction and Release Documents at the Closing are is subject to the satisfaction at fulfillment, on or prior to the Closing Date Date, of the following conditions, any of which may be waived in writing by Newco: (a) the The representations and warranties of made by the Company set forth in this Agreement Section 3.1 hereof that are qualified as to materiality shall be true and correct, correct in all respects and the representations and warranties of the Company set forth in this Agreement that are not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, as though made on and as of the Closing Date, except to the extent the any such representation or warranty is expressly limited by its terms to another speaks as of an earlier date, in which case such representation or warranty shall be true and Newco shall have received a certificate (which certificate may be qualified by knowledge to correct as of such earlier date, except where the same extent as the failure of any such representations and warranties of to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect. The Company contained shall have performed in all material respects all obligations and covenants herein are so qualified) signed required to be performed by it on or prior to the Closing Date. The Company shall have delivered a certificate, executed on behalf of the Company by an executive officer its Chief Executive Officer or its Chief Financial Officer, dated as of the Company Closing Date, certifying to such effect;the fulfillment of the conditions specified in this Section 4.2(a). (b) each of the obligations of the Company to be performed at or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Closing Date and at the Closing the The Company shall have executed and delivered to Newco a certificate signed on behalf of the Company by an executive officer of the Company to such effect;Newco Satisfaction and Release Documents. (c) The Company shall, upon Newco’s written request, submit to Newco the resignations of the Board of Directors of the Company shall have obtained at or prior to the consent, approval or waiver of each non-governmental person whose consent, approval or waiver shall be required in order for each of them to consummate Closing (the transactions contemplated hereby, except those for which the failure to obtain such consent, approval or waiver, individually or in the aggregate, could not reasonably be expected to have a Company Material Adverse Effect;“Board Resignation Request”). (d) Newco shall have obtained from the consentNewco Investors the Newco Financing to purchase the Securities for the Securities Purchase Price and to pay the Newco Expenses and such other sums as contemplated by the Bondholder Sale Agreements, approval or waiver of each non- governmental person whose consent, approval or waiver shall be required in order for Newco to consummate and the transactions contemplated hereby, except those for which by the failure to obtain such consent, approval or waiver, individually or in the aggregate, could not reasonably be expected to Bondholder Sale Agreements shall have a Newco Material Adverse Effect;been consummated. (e) each holder of shares of Company Preferred Stock issued and outstanding on the date hereof The Newco Investors shall have entered into executed an instrument evidencing their consent to the Preferred Stock terms and conditions set forth herein in form reasonably satisfactory to the Company. (Such consent by the Newco Investors is a condition subsequent to the effectiveness of this Agreement;.) (f) the Banks A sufficient number of Preferred Holders shall have entered into the Bank Agreement; (g) Newco shall have obtained the opinion of Xxxxxx & Bird, counsel executed this Agreement and consented to the Company, in Recapitalization Transaction so as to enable it to be effected without the form set forth as Exhibit I heretoconsent of any additional Preferred Holders.